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Discovery Deficit in Criminal Disputes, NLR (Meyn), Spring, 2014

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Legal Studies Research Paper Series Paper No. 1226
Brooklyn Law Review, 79 Ed.
(Forthcoming Spring 2014)

DISCOVERY AND DARKNESS: THE
INFORMATION DEFICIT IN CRIMINAL
DISPUTES
Ion Meyn
This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection at:

http://ssrn.com/abstract=2261242

Electronic copy available at: http://ssrn.com/abstract=2261242

DISCOVERY AND DARKNESS:
THE INFORMATION DEFICIT IN CRIMINAL DISPUTES
Ion Meyn∗
INTRODUCTION
Scholarship has long recognized a disparity between the discovery
rights afforded to civil litigants and those afforded to criminal
defendants. 1 A widespread assumption, however, is that a criminal
defendant actually has the power to conduct an investigation into the crime.2
But this assumption is not accurate. A criminal defendant—as opposed to
all other civil and criminal litigants—is structurally precluded from
conducting a formal investigation. Only entitled to view fragments of the
State’s evidence against him,3 a criminal defendant is not authorized to
make investigatory choices.4 In contrast, the State in a criminal matter is
imbued with police powers, and civil litigants are authorized to compel

                                                        
∗
Assistant Clinical Professor, University of Wisconsin Law School. I would like to
thank Leslie Kuhn, Alisha McKay, and Monica Mark for their tireless work and contribution. I
am indebted to the members of the University of Wisconsin Law School Junior Faculty Group, as
well as to Alex Huneeus, Andrew Coan, and Cecilia Klingele for their close reads and insight.
1
Robert L. Fletcher, Pretrial Discovery in State Criminal Cases, 12 STAN. L. REV. 293,
294 (1960) (noting a “long and deeply imbedded practice designed to keep the defendant in the
dark as long as possible”); Jean Montoya, A Theory of Compulsory Process Clause Discovery
Rights, 70 IND. L.J. 845, 855-56 (1995) (noting that calls for the expansion of criminal discovery
rights started in the 1960’s, but that no criminal discovery procedures match the broad discovery
possibilities in civil procedure); Jenny Roberts, Too Little, Too Late: Ineffective A ssistance of
Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases, 31 FORDHAM URB.
L.J. 1097, 1098 (2004) (noting the disparity between discovery rights afforded to civil and
criminal litigants).
2
W illiams v. Taylor, 529 U.S. 362, 420 (2000) (holding that a criminal defense
attorney has a duty to investigate, which implies that the criminal defense attorney has the power
to investigate); Darryl K. Brown, Criminal Procedure, Justice, Ethics, and Zeal, 96 MICH. L. REV.
2146, 2147 (1998) (implying that defense attorneys have the power to investigate by recognizing
that investigation is often limited by budgetary constraints); Rodney J. Uphoff, The Criminal
Defense Lawyer as Effective Negotiator: A Systemic A pproach, 2 CLINICAL L. REV. 73, 95-97
(1995) (assuming that a defense counsel has the power to conduct an adequate investigation,
Uphoff argues a defense attorneys first step in effectively negotiating a plea is to perform an
investigation).
3
See, e.g., FED. R. CRIM. P. 16; AM. BAR. ASS’N, STANDARDS RELATING TO DISCOVERY
AND PROCEDURE BEFORE TRIAL: RECOMMENDED BY THE ADVISORY COMMITTEE ON PRETRIAL
PROCEEDINGS (approved draft, 1970) (hereinafter ABA STANDARD) (enumerating discrete
categories of evidence that each party must disclose to the opposing party); see also Roberts,
supra note 1, at 1122 (surveying criminal procedure statutes and noting that “at one end of the
spectrum are jurisdictions that follow the highly restrictive federal rules . . . [a]t the other end are
the slightly larger number of jurisdictions following the broad 1970 American Bar Association
Standards”).
4
See, e.g., FED. R. CIV. P. 26 (requiring initial disclosures); FED. R. CIV. P. 30
(allowing depositions of any person, including parties); Fed. R. Civ. P. 33 (allowing the use of
interrogatories to be served upon parties); FED. R. CIV. P. 34 (permitting a party to request
production of documents and things from another party); FED. R. CIV. P. 45 (granting broad
subpoena power to request non-parties to produce documents and things).

Electronic copy available at: http://ssrn.com/abstract=2261242

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information from any source. A criminal defendant, permitted a keyhole
view of the State’s evidence, is the only litigant relegated to darkness.
Although it is assumed that the State initiates a criminal
investigation,6 left unexamined is what role a defendant should play in that
investigation. In civil disputes, each litigant is essential to the function of
the adversarial process.7 Yet, subjected to the same adversarial system,
criminal defendants are viewed as peripheral.8 The role presently assigned
to a criminal defendant is most akin to that of a defendant in an inquisitorial
system. Yet, unlike an inquisitorial system, the investigating agency is not
neutral. Rather, and with predictable results, a motivated prosecutor
attempts to secure defendant’s conviction.9
In identifying a discovery disparity, scholars and policymakers have
advocated for open-file policies that increase access to prosecutorial files,10

                                                        
5

See, e.g., FED. R. CIV. P. 26 (requiring initial disclosures); FED. R. CIV. P. 30
(allowing depositions of any person, including parties); Fed. R. Civ. P. 33 (allowing the use of
interrogatories to be served upon parties); FED. R. CIV. P. 34 (permitting a party to request
production of documents and things from another party); FED. R. CIV. P. 45 (granting broad
subpoena power to request non-parties to produce documents and things).
6
See, e.g., William J. Brennan, Jr., The Criminal Prosecution: Sporting Event or Quest
for Truth? A Progress Report, 68 WASH. U. L.Q. 1, 15 (1990) (noting the “many and manifest
advantages” in investigation enjoyed by the prosecution); Máximo Langer, Rethinking Plea
Bargaining: The Practice and Reform of Prosecutorial A djudication in A merican Criminal
Procedure, 33 AM. J. CRIM. L. 223, 250; Andrew D. Leipold, How the Pretrial Process
Contributes to W rongful Convictions, 42 AM. CRIM. L. REV. 1123, 1152 (2005) (“Because it has
the burden of proof, the prosecutor collects most of the evidence.”); Alexandra Natapoff,
Deregulating Guilt: The Information Culture of the Criminal System, 30 CARDOZO L. REV. 965,
989-92 (2008) (noting that the investigative sphere of the criminal justice system depends upon
“choices made by police and prosecutors,” with no role described for the defense).
7
See, e.g., Hon. H. Lee Sarokin & William E. Zuckermann, Presumed Innocent?
Restrictions on Criminal Discovery in Federal Court Belie this Presumption, 43 RUTGERS L. REV.
1089, 1091 (1991) (“In civil suits discovery is a two-way street, with each side free to request
virtually anything from the other.”).
8
See, e.g., Natapoff, supra note 6, at 989-92; Leipold, supra note 6, at 1152 (positing
that the prosecution “collects most of the evidence” without further discussion).
9
Brennan, Jr., supra note 6, at 2-3 (“The proper guide to discovery practices should not
be the likelihood that disclosure in a particular case will save the trouble of a trial.”); Langer,
supra note 6, at 252-3 (stating that “unlike inquisitorial adjudicators who are socialized and tend
to perceive themselves as impartial officials who must seek both inculpatory and exculpatory
evidence and should impartially adjudicate the case after finishing their investigation . . .
[a]merican prosecutors [] have a much more ambivalent self-perception of their role” and
concluding, “the prosecutor’s de facto adjudicatory decision is final in many cases.”); Natapoff,
supra note 6, at 967 (observing that criminal law practices has shifted from a “traditional
evidence-driven inquiry into whether there is proof that a suspect has committed a particular
offense, toward a concession-based model focused on whether the suspect has acceded to
governmental authority.”).
10
Alafair S. Burke, Revisiting Prosecutorial Disclosure, 84 IND. L.J. 481, 514 (2009)
(arguing that meeting due process concerns related to discovery issues requires an open-file
policy); Peter A. Joy, Brady and Jailhouse Informants: Responding to Injustice, 57 CASE W. RES.
L. REV. 619, 641 (2007) (advocating for an open-file discovery policy); Langer, supra note 6, at
276 (calling for open-file discovery to diminish the coercive nature of plea bargaining in the
criminal system); Roberts, supra note 1, at 1153-55 (recognizing the lack of investigatory power
given to defense counsel, but concluding that open-file discovery is the best solution).

Electronic copy available at: http://ssrn.com/abstract=2261242

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along with calls for more resources. 11 These reforms would go some
distance in mitigating existing deprivations. An open-file policy, for
example, does have the laudatory goal of encouraging more fact-based,
presumably more accurate, outcomes. But the proposal does not correct for
structural deprivations: to ensure a more fact-based prosecution, a criminal
defendant does not require more disclosures, but instead requires the power
to investigate the case in an adversary posture, before trial, as civil litigants
do.
To grant a criminal defendant equivalent discovery rights would be
to recast the defendant as a key actor in a pretrial investigation. And in the
absence of adequate pretrial testing—the existing model—the integrity of
the charging document, assessment of liability, and sentence rendered
should invite renewed scrutiny. Over fifty years ago, the United States
Supreme Court stated, “[m]utual knowledge of all the relevant facts
gathered by both parties is essential to proper litigation.”12 Criminal law
has been spared of this wisdom.
In sum, the consensus is that the low quality of information
informing criminal disputes is caused by resource constraints and limited
access to the prosecutorial file. This Article contends that criminal
defendants are also structurally precluded from conducting any investigation.
Reframing the reason for the disparity has significant implications. Only
statutorily entitled to disclosures of the State’s evidence, a criminal
defendant is forced to rely on the fruits of the opponent’s investigation to
somehow suggest a counter-narrative. This dynamic is inconsistent with the
design of the adversarial system and guarantees a factual deficit that
undermines the legitimacy of criminal law outcomes.
Part I of this Article recasts a criminal defendant as an essential
party to a criminal investigation. The belief that increased resources and
greater access to the prosecutorial file will permit a criminal defendant the
opportunity to investigate is challenged. Rather, in the absence of extending
a criminal defendant the power to direct a formal investigation, adequate
pretrial testing cannot occur. Part II evaluates the various investigative tools
that should be extended to a criminal defendant, and utilizes a case study to
ascertain how the application of these tools might affect a pretrial
investigation. Part III surveys and responds to policy arguments against
permitting the participation of criminal defendants in criminal investigations.

                                                        
11

Laurence A. Benner, The Presumption of Guilt: Systemic Factors that Contribute to
Ineffective A ssistance of Counsel in California, 45 CAL. W. L. REV. 263, 277 (2009) (“The most
important finding from our study is the discovery that indigent defense providers in many
California counties lack the resources necessary to conduct adequate defense investigations.”);
Brown, supra note 2, at 2147 (implying that defense attorneys have the power to investigate by
recognizing that investigation is often limited by budgetary constraints); Langer, supra note 6, at
252, n.18 (concluding defense counsel’s investigation often is constrained by lack of resources).
12
Hickman v. Taylor, 329 U.S. 495, 507 (1947) (emphasis added).

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I.

DEFENDANTS ARE STRUCTURALLY EXCLUDED
IN A CRIMINAL INVESTIGATION

FROM

PARTICIPATING

Most jurors believe the State has good cause to believe a defendant
guilty, and weighing on each juror at trial is the burden that a “not guilty”
verdict will let the wrongdoer go free.13 A defendant must marshal facts
sufficient to overcome this bias. Yet, rather than introduce new evidence
suggesting an alternate theory of liability, a criminal defendant will
typically attempt to undermine the State’s evidence.14 The tendency to
attempt to construct a counter-narrative from the fruits of the State’s
investigation has a structural cause: it is the only information to which a
criminal defendant is statutorily entitled.
In remarkably uniform fashion, civil litigants who meet low
jurisdictional minimums utilize a powerful array of investigative tools to the
extent deemed strategic.15 In criminal law, the State maintains a monopoly
over investigative choices16 and is afforded investigatory tools that in some
respects eclipse those afforded to civil litigants.17 Yet, a criminal defendant
is structurally precluded from formally participating in the investigation.
Where civil litigants are granted pretrial discretion to compel information
from any source, a criminal defendant views only fragments of information
collected by the State. 18 Removed from the investigatory equation, a

                                                        
13

George L. Jurow, New Data on the Effect of a “Death Qualified” Jury on the Guilt
Determination Process, 84 HARV. L. REV. 567, 593 (1971) (“Many jurors, reasonably or
unreasonably, believe that a person who has been arrested, indicted, and has put the government
to the expense of trying him, is probably guilty.”).
14
See Darryl K. Brown, The Decline of Defense Counsel and the Rise of A ccuracy in
Criminal A djudication, 93 CAL. L. REV. 1585, 1602-03 (2005) (arguing that the defense attorneys’
ability to perform a check on the prosecutions’ evidence is too often limited by a lack of
resources that prevents defense attorneys from performing meaningful independent
investigations).
15
Civil litigants in federal court are entitled to seek discovery of “any nonprivileged
matter that is relevant to any party's claim or defense.” FED. R. CIV. P. 26. States typically adopt
statutes that are similarly broad in scope. See, e.g., CAL. CODE CIV. PROC. § 2017.010 (parties
may obtain discovery regarding any relevant, non-privileged matter, that is admissible or
reasonably calculated to lead to discovery of admissible evidence).
16
See, e.g., Brennan, Jr., supra note 6, at 15 (noting the “many and manifest advantages”
in investigation enjoyed by the prosecution); Natapoff, supra note 6, 989-92 (noting that the
investigative sphere of the criminal justice system depends upon “choices made by police and
prosecutors,” with no role described for the defense); Langer, supra note 6, at 250; Leipold, supra
note 6, at 1152 (“Because it has the burden of proof, the prosecutor collects most of the
evidence.”).
17
Such powers include a threat of a probation hold and revocation, the power to arrest,
the power to search a person or place, the power to seize evidence, and the opportunity to falsely
assert that the failure to cooperate will lead to negative consequences.
18
See ABA STANDARD, supra note 3 (stating as one of its general principles, “to
provide the accused sufficient information to make an informed plea”). The ABA Standard,
despite being the template for liberalized criminal discovery, adopts a general principle that
suggests adversarial testing is not essential to the pretrial process. See Roberts, supra note 1, at
1122 (stating that the ABA Standard has influenced roughly a quarter of states adopting the most
broadly conceived criminal discovery).

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criminal defendant is left to initiate an investigation by informal means,
which is inferior in every respect to a formal investigation.
A.

Informal Investigation: A n Inferior W ay to A sk a Question

A body at rest will remain at rest unless it is subject to an outside
force. Information, too, tends to remain undiscovered in the absence of an
outside force requiring disclosure; conversely, the more “force” behind an
investigatory tool, the more that will be revealed by its use. If statutory
tools of investigation—backed by subpoena power and the threat of judicial
sanction—define what information will be discovered, investigatory power
not afforded, by implication, defines what tends to remain protected.
Where the power to conduct a formal investigation is restricted to
civil litigants, anyone can conduct an informal investigation. It is a method
we use daily. We may inquire into whether, for example, a store has the
new toy every child wants for Christmas. If the sales associate says no, the
next shipment is not until January, we might ask another associate in an
effort to undermine or corroborate the first associate’s answer. Only
entitled to voluntary compliance, we cannot compel sales receipts or inspect
inventory.
The informal method is not efficient. To locate a potential witness,
it may take weeks to make contact and visit the residences of, say, her
Facebook friends for a lead. A person may know the location of a potential
witness but cannot be forced to divulge the address. Even if a witness’
location is known—it is not uncommon for a witness to refuse to answer the
door or to screen calls—and it may take months to convince the witness to
meet and discuss the case.
Neither is the informal method effective. Left to persuade voluntary
disclosure,19 a criminal defense attorney is presented with unique challenges.
Police officers who routinely confer with prosecutors often refuse to speak
with a defense attorney. Witnesses are reluctant to talk in neighborhoods
where the line between being an eyewitness and a suspect is viewed as
arbitrary. If a witness does initially cooperate, it is not uncommon for the
interview to end when questions approach probative.
In contrast,
depositions permit unyielding examination, and any obfuscation is on the
record, providing opportunities to suggest bias at trial.20
One cannot rely on hope to conduct an investigation into a crime.
Growling dogs, refusals to open a door, and off-the-record lying leave a
criminal defendant with no recourse. A criminal defense attorney thus has
no more power to conduct a formal investigation than her neighbors. In
contrast to the informal model of discovery that requires massive resources

                                                        
19

Attorneys, unlike law enforcement agents, cannot engage in threats or deception to
extract information. See infra note 103 and accompanying text.
20
See, e.g., YOUTUBE, June 20, 2012, Deposition of Dwayne Michael Carter, a.k.a. Lil
Wayne, http://www.youtube.com/watch?v=YQsMqRvPzRw (last visited Apr. 23, 2013).

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and no small degree of luck to obtain an incomplete understanding of a case,
the power to compel a person to appear at a place and time to answer
questions under oath is comparatively efficient and effective.
B.

The Modern Era: The A dvent of the Formal Investigation

In 1938, Congress ushered in the modern era of pretrial fact
testing.21 Prior to this time, plaintiffs were first required to conduct an
informal investigation to substantiate the complaint, and only then could
petition the court to compel pretrial information. 22 The new rules
empowered litigants to conduct a formal investigation, permitting each party
to compel testimony and to demand documents from any source.23
A formal investigatory tool grants power to compel any relevant
information from any source, leaving only privileged information
protected.24 The strength of these formal tools may vary, based on the
invasiveness of the inquiry permitted (one day versus unlimited time to
conduct a deposition), and the duration in which to conduct an investigation
(the trial date is set one year out versus two months out). A formal
investigatory tool does not of course guarantee consideration of every
relevant fact. Circumstances may prevent disclosure. A witness might live
in the litigant’s zip code—she is easy to find, serve, and depose. But if the
witness lives in rural Portugal, it may be prohibitively expensive to find her
(third gravel road after apple tree), serve her (one must refer to the Hague
Convention on Taking of Evidence Abroad in Civil or Commercial
Matters),25 and to question her (travel, translation, and lodging). These
limitations aside, the formal investigative tools permitted by the Federal
Rules of Civil Procedure are far superior to informal investigative methods.
C.

A dhering to the Pre-Modern W orld: The Birth of the
Disclosure

The criminal law has retained fidelity to the pre-modern conception
of discovery—neither party is granted power to compel pretrial information.
Yet, the need for procedural reform is most acute in criminal disputes:

                                                        
21

John H. Beisner, Discovering A Better W ay: The Need for Effective Civil Litigation
Reform, 60 DUKE L.J. 547, 549 (2010) (discussing the expansion of discovery in civil cases since
Congress’s adoption of the Federal Rules of Civil Procedure in 1938); Stephen N. Subrin, Fishing
Expeditions A llowed: The Historical Background of the 1938 Federal Discovery Rules, 39 B.C.
L. REV. 691, 692 (1998) (providing an analysis of the adoption of the Federal Rules of Civil
Procedure).
22
Beisner, supra note 21, 554-55.
23
FED. R. CIV. P. 26 advisory committee’s note (1937) (“This rule freely authorizes the
taking of depositions under the same circumstances and by the same methods whether for the
purpose of discovery or for the purpose of obtaining evidence . . . [t]he more common practice in
the United States is to take depositions on notice by the party desiring them, without any order
from the court, and this has been followed in these rules.”).
24
See, e.g., FED. R. CIV. P. 26(b)(1), 30, 33, 34.
25
28 U.S.C. § 1782 (2006).

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where the State is constitutionally afforded police powers to conduct a
formal investigation, to date, no federal reform extends formal investigatory
powers to a criminal defendant.
In 1944, when it was a foreign concept to furnish a criminal
defendant with any information, a new federal rule permitted a defendant to
inspect those of his things impounded by the government.26 Where the first
major reform in civil procedure granted litigants robust investigative
powers, a criminal defendant was merely afforded the right to inspect what
was once his. Subsequent reforms conferred no formal investigative power,
but instead added to a limited laundry list of disclosures. In 1966, a
criminal defendant was granted access to his own statement, his grand jury
testimony, and to reports of scientific tests—all disclosures.27 A defendant
was also entitled to documents “material” to presenting a defense: sharing
some characteristics of an investigatory tool. Intended to “limit the scope of
the government’s obligation to search its files while meeting the legitimate
needs of defendant,”28 the State retains broad discretion in selecting what
information is released.29
In addition to statutory rights, the Brady doctrine—theoretically
ensuring defendant some baseline of information critical to due process—is
also a disclosure right. Under Brady, a prosecutor must turn over, before
trial, material and exculpatory information.30 According to one casebook,
Brady’s obligation “to disclose exculpatory evidence overrides any
limitations on discovery provided for by a jurisdiction’s discovery statutes
or rules.”31 This characterization overstates Brady. Brady does not convey
investigative power to a defendant. Courts tend to forgive prosecutorial
neglect and favor finality.32 Prosecutors tend to undervalue evidence that
might be exploited by an adversary,33 and may misapprehend the standard.34

                                                        
26

FED. R. CRIM. P. 16 advisory committee’s note to 1944 amendment.
FED. R. CRIM. P. 16 advisory committee’s note to 1966 amendment.
28
FED. R. CRIM. P. 16 advisory committee’s note to 1966 amendment. Subsequent
reform entitled defendant to the disclosure of anticipated expert opinion testimony. See FED. R.
CRIM. P. 16 advisory committee’s note to 1993 amendment.
29
Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in
Criminal Cases, 2006 WIS. L. REV. 291, 351. In addition, the analysis in cases finding Brady
violations underscores these prosecutorial tendencies to diminish the importance of the “material”
evidence. See, e.g., Brady v. Maryland, 373 U.S. 83, 87 (1963); Kyles v. Whitley, 514 U.S. 419,
434 (1995); Smith v. Cain, 132 S. Ct. 627, 629-30 (2012). A court’s inclination to do the same is
exemplified in the Justice Clarence Thomas’ dissent in Smith. 132 S. Ct. at 640-41 (Thomas, J.,
dissenting).
30
Kyles, 514 U.S. at 432.
31
RUSSELL WEAVER, ET. AL., CRIMINAL PROCEDURE: CASES, PROBLEMS & EXERCISES,
888 (3d ed. 2007).
32
See, e.g., Smith, 132 S. Ct. 627. A fascinating case that split the Court’s conservative
wing, it strengthens the Brady doctrine by providing a per se right to a new trial, but in narrow
circumstances. Justice Thomas’ dissent reveals how far a judge will go justify the State’s failure
to turn over evidence.
33
See supra note 29 and accompanying text.
34
See, e.g., State of W isconsin v. V ollbrecht, Aug. 9, 1989 Tr., (Prosecutor:)
“The case law makes it very clear that the defense is entitled to exculpatory evidence,
and there’s a fairly high standard for what that means. It’s evidence that clearly
27

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Law enforcement may liberate the prosecutor from any navel-gazing by
delivering an investigatory file that excludes evidence inconsistent with a
defendant’s guilt. Some courts find that Brady offers no protection to
defendants who reach pretrial resolutions. 35 In operation, Brady only
protects the few who, without any postconviction discovery rights,
somehow find documents hidden in State files.
Thus, where civil litigants are granted statutory power to compel
information from any source, under federal rules and constitutional doctrine
a criminal defendant is merely entitled to limited disclosures of State’s
evidence.36 The federal rule influences a significant number of states.37 Of
equal significance is the ABA Standard, the liberal bookend to the federal
model’s conservative approach.38 There is little daylight between the two
standards; both provide for limited prix fixe menus of State’s evidence.
D.

Disclosures are Not Investigatory Tools

A formal investigative tool permits a litigant to compel information
of her choosing—she decides what source is potentially significant, and
what she will ask. A litigant entitled to disclosures, however, has no such

                                                                                                                                       
indicates, if you will, the guilt of a third party or absolutely minimizes the guilt of the
defendant. We don’t see that sort of evidence in our files.” (Emphasis added). 
35
United States v. Ruiz, 702 F. Supp. 1066, 1069-70 (S.D.N.Y. 1989) (holding that
Brady protections do not apply to pretrial pleas); see also Robert C. Black, FIJA :
Monkeywrenching the Justice System?, 66 UMKC L. REV. 11, 24 (1997) (stating that “only about
ten percent of felony cases go to trial”); Frank H. Easterbrook, Plea Bargaining as Compromise,
101 YALE L.J. 1969, 1978 n. 22 (1992) (commenting that the percentage of pleas in federal cases
ranges from eighty percent to ninety percent); H. Richard Uviller, The Obligation of Dispassion
in a Passionate Pursuit, 68 FORDHAM L. REV. 1695, 1699 (2000) (finding that trials occur in about
ten percent of criminal matters).
36
These observations are sourced from a sampling of civil and criminal procedures
adopted by the federal government, as well as ten states that account for more than half of the
nation’s population and are geographically diverse: Alabama, California, Florida, Illinois, New
York, Ohio, Pennsylvania, Texas, Virginia, and Wisconsin. Of the ten states in the Sampling, six
share significant similarities with the federal rule, whereas three are more closely wedded to the
slightly more liberal ABA Standard. See also YALE KAMISAR, ET AL., MODERN CRIMINAL
PROCEDURE 1200-01 (13th ed. 2012), for a survey of criminal discovery nationwide. In the ten
state sampling, no discovery tools are mentioned; rather, the description is of “disclosure based”
discovery—prosecutors must, here or there, disclose defendant’s statements, codefendant’s
statements, defendant’s criminal record, scientific reports, witness lists, and certain documents
and police reports. In this description, there is no sense that the defendant has the statutory power
to investigate.
37
CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN
ANALYSIS OF CASES AND CONCEPTS 671 (5th ed. 2008) (discussing the adoption of Rule 16 of the
Federal Rules of Criminal Procedure and “the proliferation of similar rules at the state level”);
Lissa Griffin, Pretrial Proceedings for Innocent People: Reforming Brady, 56 N.Y.L. SCH. L. REV.
969, 980 n.69 (2011) (remarking, that as to the Brady-based language of Fed. R. Crim. P. 16—
that the state must turn over evidence “material to the preparation of the defendant’s defense”);
Roberts, supra note 1, at 1122 (stating that about a fourth of the states adopt the federal standard,
and another half, to varying degrees, have integrated federal discovery concepts).
38
ABA STANDARD, supra note 3; see also Roberts, supra note 1, at 1122 (stating that
the ABA Standard has influenced roughly a quarter of states adopting the most broadly conceived
criminal discovery.)

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discretion. Discretion is bound by statute or the opponent. The federal rule
that requires the State disclose what is personal to defendant—his criminal
history, for example—is a statutorily-defined disclosure.39 A defendant is
not permitted to request documents exceeding that constraint; for example,
police reports that refer to defendant. The federal rule that requires the State
to turn over any document it intends to use at trial is an example of an
opponent-defined disclosure.40 By this rule, the prosecutor determines the
scope of responsive documents, if any—photos of gunshot wounds, an
autopsy report, a crime scene map. In jurisdictions influenced by federal
constraints,41 a defendant has no discretion to obtain exculpatory documents,
witness lists, police reports, or names of investigating detectives.42 Further
narrowing the significance of disclosures, a criminal defendant is only
authorized to obtain information from one source, the State.43
Although civil statutes occasionally provide for disclosures,44 they
are different in purpose. Disclosures granted in criminal law constitute the
beginning and end of statutorily permitted discovery. 45 But in civil
litigation, mandatory disclosures at the lawsuit’s inception “accelerate the
exchange of basic information,” “focus the discovery that is needed,” and
“guide further proceedings in the case.”46 In criminal litigation, there is no
formal investigation to seed.
Based on a sampling of jurisdictions, the following tables
underscore how a criminal defendant depends on disclosures from the State,
whereas civil litigants are sometimes provided disclosures to seed

                                                        
39

See, e.g., FED. R. CRIM. P. 16(a)(1)(A), (B), (D).
See, e.g., FED. R. CRIM. P. 16(a)(1)(E)(ii).
41
See, e.g., FED. R. CRIM. P. 16(a); see also ALA. R. CRIM. P. 16.1; ILL. S. CT. R. 412(a);
N.Y. CLS § 240.20; PA. R. CRIM. P. 573(B) TEX. CODE CRIM. P. 39.14(a); VA. SUP. CT. R.
3A:11(b).
42
California, Illinois, and Ohio are states in the sampling that require the State to turn
over the witness list. CAL. PEN. CODE § 1054.1(a); ILL. SUP. CT. R. 412(a)(i); OHIO R. CRIM. P.
16(I). California and Ohio provide for disclosure of exculpatory information. CAL. PEN. CODE §
1054.1(e); OHIO R. CRIM. P. 16(B)(5). Florida and Ohio provide for all police reports, Florida
requires the contact information of witnesses and the interviewing detectives. FLA. R. CRIM. P.
3.220(b)(1)(A)-(B); OHIO R. CRIM. P. 16(B)(1).
43
FED. R. CRIM. P. 16(a); see, e.g., ALA. R. CRIM. P. 16.1; CAL. PEN. CODE § 1054; FLA.
R. CRIM. P. 3.220; ILL. SUP. CT. RULE 412; N.Y. CRIM. PRO. L. § 240.20; OHIO CRIM. R 16; PA. R.
CRIM. P. 573; TEX. CODE CRIM. PROC. ART. § 39.14.
44
See infra Figure 1; FED. R. CIV. P. 26(a)(1) (requiring disclosure of individuals likely
to have information and certain documents); ILL. SUP. CT. R. 213(f) (requiring disclosure of
witness information if requested); NY CPLR § 3101(d) (requiring disclosure, if requested, of
information pertaining to expert witnesses); PA. R.C.P. NO. 4003.4 (allowing discovery of
statements from parties, non-parties, and witnesses that pertain to the action); TEX. R. CIV. P.
194.1-.2 (providing that upon request a party may obtain contact information for all parties, the
opposing party’s legal theory, damage calculations, and information relating to those who may
have information, including experts).
45
See infra Figure 1. Typically, jurisdictions in the states sampled only provide for
disclosures at the request of defendant. Therefore, the vast majority of discovery available to the
criminal defendant is not mandatory, but only occurs via request.
46
FED. R. CIV. P. 26 advisory committee’s note to 1993 amendment.
40

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investigations, and are, as a matter of course, permitted the power to compel
information from any source:
Fig. 1
Discovery Mechanisms: Civil Litigants
Fed

AL

CA

FL

IL

NY

OH

PA

TX

VA

WI

IL

NY

OH

PA

TX

VA

WI

Disclosures
Interrogatories
Depositions
Documents
from Parties
Documents
from Non-Parties

Discovery Mechanisms: Criminal Defendants
Fed

AL

CA

FL

Disclosures
Interrogatories
Depositions
Documents
from Parties
Documents
from Non-Parties

Key:47
X - Broad Discovery Right
/ - Limited Discovery Right

                                                        
47

There is no bright line test in determining what discovery rights afforded is “broad”
versus “limited.” It is a comparative analysis. For example, under federal criminal procedure, a
defendant is entitled to inspect his own statement, items material to presenting a defense, exhibits
that the government intends to use at trial, reports of scientific reports, and a summary of expert
witnesses. FED. R. CRIM. P. 16(a). Under civil law, the disclosures are not only mandatory at the
inception the lawsuit, but they are much broader: they require disclosure of the contact
information of any person with discoverable information, including a description of their

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A criminal defendant is thus relegated to receive evidence weighted
against him, he has no power to conduct a formal investigation, and he must
construct a counter-narrative from facts that the State will use against him.
And yet, additional structural impediments still further diminish the
significance of information to which a criminal defendant is entitled.
Disclosure rights in criminal law tend to be trial-centric.48 Whereas
civil discovery rules are designed to fuel a broad pretrial investigation,49
disclosures owed to a criminal defendant tend to be anchored in the trial
event. A criminal defendant is, for example, entitled to his statement if the
State intends to use it at trial, or to documents the State intends to use at
trial.50 By design, these provisions are not intended to further pretrial
investigations; they are instead wedded to an event that only rarely occurs.
Some jurisdictions are trial-centric in toto; Wisconsin does not require any
disclosure of State’s evidence until “a reasonable time before trial.”51
In some jurisdictions, a criminal defendant must seek judicial
approval to secure disclosures—as opposed to a civil litigant who directs
investigations free from judicial intervention. In Texas52 and Virginia,53
limited disclosures are only granted through court order. These jurisdictions
add a layer of resistance, especially for a defendant facing a disciple of
Judge Learned Hand, who wrote:
Under our criminal procedure the accused has every
advantage.54 While the prosecution is held rigidly to the
charge, he need not disclose the barest outline of his defense.
He is immune from question or comment on his silence; he
cannot be convicted when there is the least fair doubt in the
minds of any one of the twelve. Why in addition he should
in advance have the whole evidence55 against him to pick
over at his leisure, and make his defense, fairly or foully, I
have never been able to see . . . . Our dangers do not lie in
too little tenderness to the accused. What we need to fear is
the archaic formalism and the watery sentiment that
obstructs, delays, and defeats the prosecution of crime.56

                                                                                                                                       
potential relevance, along with a copy of all documents that the disclosing party may use to
support its claims. FED. R. CIV. P. 26(a)(1)(A).
48
Langer, supra note 6, at 275 (stating that federal criminal procedure in particular
establishes “a mainly trial-centric approach to discovery rules”).
49
See, e.g., FED. R. CRIM. P. 26(a).
50
FED. R. CRIM. P. 16.
51
WIS. STAT. § 971.23(1)(a)-(h) (requiring that certain disclosures be made at a
“reasonable time before trial”).
52
TEX. CODE CRIM. PROC. ANN. ART. § 39.14(a)-(b).
53
VA. S. CT. R. 3A:11.
54
Judge Hand provides no citation for this assertion.
55
Judge Hand’s characterization of the “whole evidence” succinctly captures the
sentiment, challenged by this Article, that a criminal defendant has no role to play in an
investigation.
56
United States v. Garsson, 291 Fed. 646, 649 (S.D.N.Y. 1923).

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E.

Criminal Defendants Have Been Excluded from
Participation in Criminal Investigations; They Should Be
Considered Essential

The State initiates and completes a criminal investigation. What
facts law enforcement collects makes up the investigative file. 57 The
investigative file may memorialize leads dropped or ignored by law
enforcement. What is turned over to the prosecutor constitutes the
prosecutorial file, which may be a subset of the investigative file. What the
prosecutor turns over to defendant, a subset of the prosecutorial file,
constitutes the pretrial facts of the case.58 Much of the debate focuses on
whether a criminal defendant should have more access to the prosecutorial
file.59 Lost in this analysis is whether a criminal defendant should be
permitted to go beyond the State’s prosecutorial file, to go beyond the
investigative file, and to conduct an independent investigation. Treated as if
subject to an inquisitorial system, a defendant nevertheless remains situated
against a motivated opponent that controls the collection and distribution of
facts.60
Resistance to a criminal defendant gaining access to facts is
considerable. In 1974, an effort to provide for the pretrial disclosure of the
State’s proposed witness list in federal disputes was vigorously opposed.
According to the United States Department of Justice, doing so would be
“dangerous and frightening in that government witnesses and their families
will even be more exposed than they are now to threats, pressures, and
physical harm.”61 Although there is scant empirical guidance on the issue,
some state jurisdictions have since permitted defendants access to witness
lists—one would expect any uptick in intimidation to have led to the repeal

                                                        
57

See, e.g., Langer, supra note 6, at 250; Natapoff, supra note 6, at 989-92 (noting that
the investigative sphere of the criminal justice system depends upon “choices made by police and
prosecutors,” with no role described for the defense).
58
See supra Part I (noting that disclosures only provide limited access to the State’s,
and only the State’s, evidence).
59
Joy, supra note 10, at 641 (“The surest way to meet and exceed Brady disclosure
obligations is to adopt an ‘open-file’ discovery policy-essentially making available to the defense
all the information in the prosecutor’s possession.”).
60
Langer, supra note 6, at 252-3 (stating that “unlike inquisitorial adjudicators who are
socialized and tend to perceive themselves as impartial officials who must seek both inculpatory
and exculpatory evidence and should impartially adjudicate the case after finishing their
investigation . . . [a]merican prosecutors [] have a much more ambivalent self perception of their
role” and concluding, “the prosecutor’s de facto adjudicatory decision is final in many cases.”);
Natapoff, supra note 6, at 967 (observing that criminal law practices has shifted from a
“traditional evidence-driven inquiry into whether there is proof that a suspect has committed a
particular offense, toward a concession-based model focused on whether the suspect has acceded
to governmental authority.”).
61
Brennan, Jr., supra note 6, at 6 (quoting H.R. Rep. No. 247, 94th Cong. 1st Sess. 41,
reprinted in 1975 U.S. Code Cong. & Admin. News 674, 712).

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of such disclosures, yet these provisions remain on the books.62 Justice
William Brennan, observing that particular circumstances might warrant
concern, opined “the proper response . . . cannot be to prevent discovery
altogether; it is rather to regulate discovery in those cases in which it is
thought that witness intimidation is a real possibility.”63 Beyond protective
orders issuing in appropriate cases, there are existing deterrents to witness
intimidation. Pretrial custody reduces a defendant’s ability to communicate
with the outside world, and most communications are monitored. A
jailhouse call revealing any attempt to intimidate a witness may potentially
be used against a defendant as affirmative evidence of guilt.64 Under federal
law, anyone who assists in an attempt to dissuade a witness from testifying
faces twenty years of prison.65
Left unexplored by status quo proponents is the fact that a criminal
defendant is powerless to counter state-initiated efforts to incentivize
testimony or to dissuade witnesses from offering exculpatory information.
Officers may actively suppress potentially exculpatory evidence—telling a
potential alibi witness, “we will tell your track coach you are lying to an
officer and you will lose your scholarship.”66 Without power to compel
pretrial answers from the officers, the witness, and those who may have
observed the exchange, a defense attorney cannot overcome the damage.
Officers may, however unintentionally, facilitate false testimony through
incentive or threat67—we will put you in jail unless you take the stand.68
Jailhouse snitch evidence, which contributed to fifteen percent of

                                                        
62

16(I).

63

See, e.g., CAL. PEN. CODE § 1054.1(a); ILL. SUP. CT. R. 412(a)(i); OHIO R. CRIM. P.

Brennan, Jr., supra note 6, at 14.
See, e.g., United States v. Miller, 276 F.3d 370, 373 (7th Cir. 2002) (“Evidence that
the defendant threatened a potential witness or a person cooperating with a government
investigation is relevant to show the defendant's consciousness of guilt.”).
65
18 U.S.C. § 1512(b) (2006).
66
This example is based on an investigation conducted by the Wisconsin Innocence
Project. Interviewed five years after the event, the young man, now working at a bank and
starting a non-profit to assist inner-city kids, confirmed that these threats were made by detectives.
67
See C. RONALD HUFF ET AL., CONVICTED BUT INNOCENT 71 (1996) (“Police and
prosecutorial improprieties take on several different forms: [including] making threats against
potential witnesses for the accused.”).
68
See, e.g., A. G. Sulzberger, Facing Misconduct Claims, Brooklyn Prosecutor A grees
to Free Man Held 15 Y ears, N.Y. TIMES (June 8, 2010),
www.nytimes.com/2010/06/09/nyregion/09vecchione.html. In this case, Jabbar Collins was
exonerated of murder in June 2010 after fifteen years in prison; one of the three main witnesses in
the prosecution’s initial case testified that the prosecutor “repeatedly threatened to hit him and
said that ‘[i]f you don’t testify, you’re going to be in jail a long time.’” Id. The witness was jailed
for a week before he eventually agreed to testify. Id. See also Colin Moynihan, Cleared of
One ’95 Murder, 3 Men Have Conviction V acated in a 2nd, N.Y. TIMES (Jan. 23, 2013),
www.nytimes.com/2013/01/24/nyregion/convictions-of-three-in-1995-murder-of-deniseraymond-overturned.html?ref=falsearrestsconvictionsandimprisonments, in which a witness
recanted her testimony, saying it was delivered under duress from law enforcement. She also
stated that she feared retaliation from law enforcement should she not testify. Colin Moynihan,
Cleared in One ’95 Killing, 3 Seek Reversal in A nother, N.Y. TIMES (Jan. 2, 2013), http://www.
nytimes.com/2013/01/03/nyregion/three-still-jailed-for-95-killing-seek-a-second-reversal.html.
64

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documented exonerations, is state-incentivized testimony.69 A lying snitch
has much to gain by testifying against his cellmate and may attempt to
intimidate a potential witness who knows about the fabrication. In addition,
some forms of non-state-initiated obstructionism can benefit the State—for
example, a witness with exculpatory information may refuse to speak with
the defense. Providing investigative power to both parties helps ensure
neither a defendant nor the State benefits from circumstances that prevent
accurate outcomes.
Criminal defendants have no power to check a law enforcement
officer playing loose with the facts. A former San Francisco Police
Commissioner recently stated:
One of the dirty little not-so-secret secrets of the criminal
justice system is undercover narcotics officers intentionally
lying under oath. It is a perversion of the American justice
system that strikes directly at the rule of law. Yet it is the
routine way of doing business in courtrooms everywhere in
America.70

Bronx Assistant District Attorney Jeannette Rucker, conceding “it had
become apparent that the police were arresting people even when there was
convincing evidence that they were innocent,” found that officers had
provided “false written statements” to justify the arrests.71 Despite these
anecdotal concerns over officers falsifying reports and testimony, a criminal
defendant has no power to depose these officers or to demand documents
relating to the testimony.
The monopolistic, adversarial power of the State remains unchecked
by any counter-investigation. Yet, it is a defendant who is in the position to
do exactly that. Some voice concern that providing such power will permit
a criminal defendant to misuse resources to delay or interfere with the
investigation.72 The potentiality that a liable party would attempt to derail
an investigation is not unique to criminal law: civil defendants, too, face
sometimes overwhelming liability that provides an environment for
obfuscation73—a defendant executive tells an underling “say one word and

                                                        
69

Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 76 Figure 2 (2008).
Michelle Alexander, Why Police Lie Under Oath, N.Y. TIMES, Feb. 3, 2013, at SR4.
71
Id.
72
Brennan, Jr., supra note 6, at 6 (detailing arguments made by Chief Justice
Vanderbilt of the New Jersey Supreme Court against liberal discovery for criminal defendants).
73
Whistleblower statutes – those statutes that protect people who expose wrongdoing
by either incentivizing their decision to speak or protecting them from retaliation – reflect
policymakers’ attention to this problem in the civil sphere. See generally Elletta Sangrey
Callahan & Terry Morehead Dworkin, The State of State W histleblower Protection, 38 AM. BUS.
L.J. 99 (2000) for a discussion of legislative and judicial protections available to whistleblowers
in the United States.
70

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you’ll be out of a job.” But these potentialities do not result in calls to
preclude a liable civil defendant from testing plaintiff’s theories. Civil
procedure provides for checks on dilatory practice, including the imposition
of protective orders and judicial sanction. 75 Although certain judicial
sanctions available in civil law might be precluded by due process concerns
unique to a criminal defendant, deceptive schemes—for example, an effort
to manufacture an alibi—are vulnerable to contradictions, can backfire, and,
in the criminal law, carry the threat of being charged with a felony for
obstruction.
One rationale for the discovery deprivations visited on criminal
defendants is the assumption that they are “presumed guilty.” This rationale
is particular to a criminal defendant; one does not find any concerns in the
literature over letting a civil defendant who is likely liable—Exxon in the
Puget Sound oil spill litigation—test the validity of plaintiff’s case. Though
a criminal defendant is constitutionally presumed innocent, precluding a
defendant from conducting an investigation undermines this status.
Regardless, the proper functioning of the adversarial system does not
depend on whether the defendant is actually liable or not. Irrespective of
whether a defendant is innocent, guilty, or something in between, a
defendant is motivated to challenge the State’s theory of liability.
What an adversarial system demands is undermined by these
deficiencies in criminal procedure that do not provide an adequate check on
the opposing party’s control of the facts. The only litigant with formal
powers of investigation, the State develops the facts and establishes its
narrative of what occurred. A criminal defendant is not afforded tools to
develop a counter-narrative based on facts the State has filtered out, left
unexplored, or failed to discover. A criminal defendant is subject to an
adversarial system that does not allow for adversarial testing.76

                                                        
74

See Paul Sullivan, The Price W histle-Blowers Pay for Secrets, N.Y. TIMES (Sept. 21,
2012), http://www.nytimes.com/2012/09/22/your-money/for-whistle-blowers-consider-the-riskswealth-matters.html?ref=whistleblowers. A spokesman for Taxpayers Against Fraud stated that,
for whistleblowers, “[t]here is a 100 percent chance that you will be unemployed — the question
is, Will you be forever unemployable? . . . The other 100 percent factor is the person who fired
you, the person who designed and implemented the fraud, won’t be fired. He’ll probably be
promoted again.” Id. Statutes like Title VII’s retaliation provisions are meant to prevent such
results. See 42 U.S.C. § 2000e-3(a) (2006).
75
FED. R. CIV. P. 26 advisory committee’s note to 1983 amendment (“Excessive
discovery and evasion or resistance to reasonable discovery requests pose significant problems;”
and in response, striking from the statute language stating “the frequency of use of the various
discovery methods was not to be limited” with the intent that parties, when appropriate, would
file a protective order).
76
Langer, supra note 6, at 250 (stating that in many cases the prosecutor, in control of
the evidence, successfully plays the role of sole adjudicator in plea negotiations); Natapoff, supra
note 6, at 968 (stating that “the investigative sphere is the most powerful adjudicative arena, in
which police and prosecutorial decisions about information and potential liability determine the
circumstances under which individuals must confront the coercive powers of the state.”).

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F.

Open-file Reform— A “Solution” Subject to Prevailing
Constraints

In a study funded by the Pew Foundation, the Justice Institute
proposed the following:
Mandatory and open-file discovery, in which prosecutors
make their entire case file available to the defense and
disclose particular items at required times, leads to a more
efficient criminal justice system that better protects against
wrongful imprisonment and renders more reliable
convictions.77

This proposal does not correct for the inherent advantages handed to the
State in collecting facts that favor its own position. Expanding a
defendant’s access to the State’s file—to provide for more disclosures—
remains anchored in the pre-modern discovery era. An open-file policy is
misleading, too, in name: far from being “open,” the policy provides some
degree of access to the prosecutorial file, but no access to the investigatory
file.78 Providing a criminal defendant with a single investigatory tool—the
right, for example, to compel receipt of relevant 79 documents—would
exceed the value of any open-file policy. With the power to request
documents, a litigant not only would gain access to information in the
prosecutorial file, but all responsive documents the law enforcement agency
neglected to forward to the prosecutor.
Reviewing an “open” file does not permit a defendant to question
what is disclosed. Police officers not only narrate witness interviews, but
also rehearse this narrative with the prosecutor to cement its existence.
Defense counsel is precluded from disrupting this script with alternative
theories of interpretation.80 Given that ninety percent of criminal defendants
plead guilty,81 the State is able to represent the strength of its case against a
defendant without having to subject its narrative to scrutiny, an inequity
built into criminal procedure.
Open-file policies are an incremental step in the right direction and
would at least prevent “documents for due process” deals. Under the
principle that deprivations beget additional deprivations, some prosecutors

                                                        
77

THE JUSTICE PROJECT, EXPANDED DISCOVERY IN CRIMINAL CASES: A POLICY REVIEW
(2007),www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Death_penalty_reform/Exp
anded%20discovery%20policy%20brief.pdf.
78
See supra Part I.E.
79
See supra Part I.C (explaining the limited nature of a discovery right that permits
access to only “material” documents).
80
In addition, a defense attorney who wishes to call a State’s witness or hearsay
declarant to testify is dissuaded by his inability to conduct a prior interview with the witness,
which could expose the attorney to allegations of ineffective assistance of counsel. Montoya,
supra note 1, at 862. 
81
See supra note 35 and accompanying text.

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offer a defendant the chance to view the prosecutorial file in exchange for
waiving, for example, the preliminary hearing. These sort of arrangements
underscore the need for comprehensive reform—a defendant should not
have to bargain away significant rights in exchange for gaining access to
facts that are in any case weighted against him. Rather, a defendant should
be granted access to the prosecutorial and investigative files, in addition to
invasive tools that permit a formal investigation into the State’s case.
II.

WHAT IS LOST FOR CRIMINAL DEFENDANTS

A close evaluation of what it means to not have investigative
tools—depositions, document requests, interrogatories—reveals what is lost,
and what might be gained, by their use.
A.

Investigative Tool No. 1: Depositions

The fifty states grant civil litigants power to depose witnesses.82 By
this extraordinary power, an attorney compels any person to appear and
answer questions under oath. Any objection not invoking privilege
typically serves only to cause delay—the witness must still answer.83 What
is asked is not governed by what a jury can hear; depositions delve into
hearsay, other acts, and character evidence, all ingredients to an effective
investigation.84 An attorney might attempt to suspend a deposition, but hell
hath no fury like a judge drawn into a petty discovery dispute. In practice,
an attorney is left to fluster opposing counsel by way of derision or dark art.
Time limits, in many jurisdictions, do not exist.85 The deposition power,
permissive in theory is unrestrained in fact.
Only three states extend deposition power to criminal defendants in
a manner approaching equivalence to the civil deposition—Vermont,

                                                        
82

Surveys, Depositions and Interrogatories, 0020 SURVEYS 3 (2012).
Although Federal Rules of Civil Procedure dictate that “[t]he examination of
deponents proceed as they would at trial under the Federal Rules of Evidence” there are
distinctions between trial practice and depositions. FED. R. CIV. P. 30(c)(1). For example, in
contrast to trial practice, objections during depositions can be made and noted, but the deponent
must respond unless the objection relates to the need to preserve a privilege or enforce a court
order. FED. R. CIV. P. 30(c)(2).
84
David Young, A New Theory of Relativity: The Triumph of the Irrelevant
Depositions, 36 UWLA L. REV. 56, 59 (2005) (“[t]he concept of relevance is still the primary
focus at depositions in determining the permissible scope of discovery.”).
85
In the Sampling, the Florida, New York, Ohio, Pennsylvania, and Wisconsin statutes
place no time limits on depositions. See FLA. R. CIV. P. 1.310; N.Y. C.P.L.R. § 3106; OHIO CIV. R.
30; PA. R.C.R. NO. 4007.1; WIS. STAT. § 804.05. The Federal Rules of Civil Procedure, Alabama,
California, Illinois, Texas, and Virginia all place time limits on deposition practice. FED. R. CIV. P.
30 (limiting deposition of individuals to seven hours); ARCP 30 (allowing witness to limit to five
hours per day); CAL. CODE CIV. P. § 2025.290 (limiting depositions to seven hours) (effective Jan.
1, 2013); ILL. SUP. CT. R. 206(d) (limiting depositions to no more than three hours); TRCP
199.5(c) (in general, providing a limit of six hours, however, the type of case and the
corresponding discovery level may demand a longer period of time); VA SUP. CT. R. 4:5(b)(3)
(allowing court discretion to set time limitation).
83

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Missouri, and Florida.
These states permit parties to depose broad
categories of individuals—police officers and victims included.87 In New
Mexico, parties may subpoena witnesses to take a recorded statement88—an
affordable “dirty deposition” subject to wide use.89 Remaining states deny
depositions to a criminal defendant. Where a civil attorney is granted
virtually unrestrained use of subpoena power, in these states a criminal
defense attorney must seek judicial permission and make a showing that the
witness is “material and necessary.” Such showings are formidable; a
prosecutor will claim defendant is engaging in a fishing expedition. In even
more restrictive jurisdictions, a litigant may only petition the court to take a
deposition to preserve testimony90—for example, a key witness is on her
deathbed. A few jurisdictions deny deposition power by omission.91
Like a criminal defendant, the State does not have deposition power
in criminal disputes.92 It would be erroneous to conclude, however, that all
is fair where players are similarly deprived. Denying investigative
opportunities to both parties does not improve the quality of facts that
inform a dispute. And the parties are not similarly situated.93 The State
directs its agents to exercise police powers to investigate a crime. 94
Cloaked in state authority, agents have impressive investigatory tools—the
power to arrest,95 search a person or place,96 seize evidence, interrogate,
falsely assert that the failure to cooperate will lead to negative

                                                        
86

FLA. R. CRIM. P. 3.220(h); MO. SUP. CT. R. 25.12 (allowing a defendant to take the
deposition of any person); MO SUP. CT. R. 25.15 (allowing prosecuting attorney to obtain
deposition of any person); V.R.C.P. Rule 15.
87
FLA. R. CRIM P. 3.220(h); MO. SUP. CT. R. 25.12; MO. SUP. CT. R. 25.15; V.R.CR. P.
Rule 15.
88
NM R DIST CT RCRP Rule 5-503 (allowing statements from any person and
depositions by agreement of parties or by court order to prevent injustice).
89
Interview with Katherine Judson, Innocence Project Litigation Fellow, in Madison,
Wis. (Oct. 23, 2012). “Dirty deposition” is the author’s assessment of the investigatory tool.
90
ALA. R. CRIM. P. RULE 16.6; ALASKA R. CRIM. PROC. 15; A.C.A § 16-44-202; COLO.
CRIM. P. 15; CT ST § 54-86; DEL. SUPER. CT. CRIM. R. 15; O.C.G.A. § 24-13-130; HAW. R. PENAL
P. RULE 15; I.C.R. RULE 15; ILL. SUP. CT. R. 414; KY. R. CRIM. RULE 7.10; ME. R. CRIM. P. 15; MD.
RULE 4-261; ALM R. CRIM. P. RULE 35; MONT. CODE ANNO., § 46-15-201; NEV. REV. STAT. ANN.
§ 174.175; N.J. COURT RULES, R. 3:13-2; NY CLS CPL § 660.20; N.C. GEN. STAT. § 8-74; OHIO
CRIM. R. 15; 22 OKLA. ST. § 762; PA. R. CRIM. P. RULE 500; R.I. SUPER. R. CRIM. P. RULE 15; S.C.
CODE ANN. § 22-3-940; S.D. CODIFIED LAWS § 23A-12-1; TENN. R. CRIM. P. 15; UTAH R. CRIM. P.
14; WASH. CRR 4.6; W. VA. R. CRIM. P. 15; WIS. STAT. § 967.04; WYO. R. CRIM. P. 15.
91
Criminal procedure statutes in Louisiana and Virginia do not address depositions.
92
The State in civil disputes has the power to depose, as all parties do. See supra note
82 and accompanying text.
93
Montoya, supra note 1, at 862 (“Professor Stanley Fisher has documented a proprosecution bias in police investigation and reporting.”).
94
Id. at 862 (“Today’s defense counsel must meet the prosecutor’s particularly
formidable and unprecedented arsenal of fact-gathering methods, including the use of an
organized police fore to marshal the evidence prior to trial.”).
95
See WILLIAM E. RINGEL, SEARCHES AND SEIZURES ARRESTS AND CONFESSIONS § 23:9
(2012) for a discussion of the police and other state officials who are given statutory authority to
perform arrests.
96
This power is of course limited by the Fourth Amendment, which protects against
unreasonable searches by government agents. U.S. CONST. AMEND. IV.

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consequences, and in some instances threaten a probation hold and
revocation to prison.98 In some jurisdictions, prosecutors convene a grand
jury.99 None of these mechanisms are available to a defense attorney.
The power to interrogate exemplifies how the State, by way of its
constitutional powers, is able to conduct a formal investigation in the
absence of a deposition. Unlike an attorney taking a deposition, an officer
can repeat a question, forcefully, and explicitly express an opinion that
defendant is guilty, a powerful tactic. Where depositions tend to take place
in a pleasant enough room, interrogations occur in cinderblock cells. In a
deposition, the witness typically has counsel; in an interrogation the witness
sits alone, answering to one or more officers. Officers engage in threats,100
falsely suggest others are implicating the suspect,101 or even manufacture a
non-existent case against a suspect to obtain information;102 in contrast,
attorneys are ethically barred from engaging in deception, and would not do
so on the record.103 Police officers not only question the subject, but also

                                                        
97

A common threat mentioned by woman witnesses in poor neighborhoods is that, if
the witness does not cooperate, she will lose her children to social services.
98
Police officers often work with probation and parole agents to place holds on
individuals who are currently under supervision to facilitate the investigation of a crime. See
Howard P. Schneiderman, Conflicting Perspectives from the Bench and the Field on Probationer
Home Searches-Griffin v. W isconsin Reconsidered, 1989 WIS. L. REV. 607, 615; see also W agner
v. State, 89 Wis. 2d 70, 78-79, 277 N.W.2d 849 (1979) (holding that a probation hold of
approximately twenty-eight hours to investigate Wagner’s potential involvement in a serious
crime was not inappropriately long).
99
The Fifth Amendment provides that “[n]o person shall be held to answer for a capital
or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .” U.S.
Const. amend. V. There is no requirement, however, that states employ the use of a grand jury.
Hurtado v. California, 110 U.S. 516, 538 (1884). As of 2010, approximately half of the states
were using grand juries. American Bar Association, FA Qs A bout Grand Jury System, (March 24,
2010), www.abanow.org/2010/03/faqs-about-the-grand-jury-system/.
100
See, e.g., BRANDON L. GARRETT, CONVICTING THE INNOCENT 39 (2011) (noting a
case in which seventeen-year-old Paula Gray, who was borderline mentally impaired, inculpated
herself and four other innocent people in a double murder. “Gray testified that she was asked,
‘Did they emphasize what would happen if you did not tell this story?’ and answered, ‘That they
would kill me.’”).
101
See, e.g., David K. Shipler, W hy Do Innocent People Confess?, Opinion, N.Y.
TIMES (Feb. 23, 2012), http://www.nytimes.com/2012/02/26/opinion/sunday/why-do-innocentpeople-confess.html?pagewanted=all (noting a case in which seventeen-year old Martin Tankleff
discovered his mother murdered and his father barely alive; he was told, falsely, by the detective
interrogating him that his father awoke from his coma and said “Marty, you did it”).
102
See, e.g., GARRETT, supra note 100, at 22-23. David Vasquez, for example, was told
by police that his fingerprints were found at the scene of a murder and eventually confessed. Id.
at 22. He was exonerated after the real perpetrator was found; he had served four years in prison
by that time. Know the Cases, INNOCENCE PROJECT, www.innocenceproject.org/Content/David_
Vasquez.php.
103
Since the purpose of an interrogation, generally, is to cause the subject to confess,
police often use “persuasive techniques comprising trickery, deceit and psychological
manipulation.” Gisli H. Gudjonsson, The Psychology of Interrogations and Confessions, in
INVESTIGATIVE INTERVIEWING: RIGHTS, RESEARCH, REGULATION 123, 124 (Tom Williamson, ed.
2006). In contrast, several of the Model Rules of Professional Conduct would be implicated if an
attorney engaged in deception during a deposition. See MODEL RULES OF PROF'L CONDUCT R. 4.1
(governing truthfulness in statements to others); MODEL RULES OF PROF'L CONDUCT R. 8.4(c)
(prohibiting deceitful behavior); MODEL RULES OF PROF'L CONDUCT R. 3.5, cmt. 5 (“The duty to

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interpret the response.
More than once a civil litigator, convinced she has
crushed the witness’ credibility, realizes upon review of the transcript that
the deponent’s answer proves much less.
That “morning after”
disappointment does not occur for detectives; instead, the officer, authoring
the resulting police report, typically retains rights over the narrative.105
Although interrogations are not compelled, the refusal to answer to
authority is rare, even after arrest.106 There are no significant time restraints,
and the interrogation is conducted at any time, often in the middle of the
night. The subject is cut off from the rest of the world. The prosecutor
typically determines if and when this report is released to the opposing party.
As a result, the State has at its disposal a “shadow deposition” that provides
narrative advantages to a civil deposition and, untested by an adversary,
overstates the State’s case during the entirety of pretrial proceedings.107
B.

Investigative Tool No. 2: To Force the Production of
Documents and Things

Civil litigants are granted the pretrial power to request the
production and inspection of documents and things from the opposing
party.108 This broad power entitles parties to obtain things relevant to any
party's claim or defense.109 The responding party must make a “reasonable
effort to assure that the client has provided all the information and
documents available to him that are responsive.”110 As opposed to criminal
litigants,111 civil litigants have the power to obtain documents from anyone,
not just an opposing party.112

                                                                                                                                       
refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition.”);
MODEL RULES OF PROF'L CONDUCT R. 3.3, cmt. 1 (indicating that the rule governing candor to the
tribunal includes conduct during a deposition).
104
Police fabrication of reports is a significant problem, since police reports are often
“dispositive in a case resolved through plea bargaining.” Christopher Slobogin, Testilying: Police
Perjury and What to Do About It, 67 U. COLO. L. REV. 1037, 1044 (1996).
105
As of 2010, seventeen states and the District of Columbia required recording of
suspect confessions under certain circumstances. See Alan M. Gershel, A Review of the Law in
Jurisdictions Requiring Electronic Recording of Custodial Interrogations, 16 RICH. J.L. TECH. 9
(2010).
106
Only twenty-two percent of those placed in custody invoke their Miranda rights and
refuse to speak to police during an interrogation. Richard A. Leo, The Impact of Miranda
Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 653 (1996).
107
See supra note 35 and accompanying text.
108
See e.g., ALA. R. CIV. P. 34(a); CAL. CODE CIV. PROC. § 2031.010; FED. R. CIV. P.
34; FLA. R. CIV. P. 1.350(a); ILL. S.C.R. 214; N.Y. C.P.L.R. 3120; OHIO CIV. R. 34(A) PA. R.C.P.
NO. 4009.1; TEX. R. CIV. P. 196.1(a); VA. SUP. CT. R. 4:9(a); WIS. STAT. § 804.09 
109
FED. R. CIV. P. 26(b); see also FED. R. CIV. P. 34.
110
FED. R. CIV. P. 26 advisory committee’s notes to 1983 Amendment.
111
Criminal litigants do not typically have any power to compel documents from third
parties. These observations are sourced on a sampling of civil and criminal procedures. See supra
note 36 and accompanying text. A few jurisdictions allowed for a limited right to request certain
documents via the subpoena duces tecum. See, e.g., FED. R. CRIM. P. 17(c)(1); ALA. R. CRIM. P.
17.3; OHIO CRIM. R. 17(C); VA. SUP. CT. R. 3A:12(b). However, the right to such a subpoena is
limited in several important ways. For example, the subpoena duces tecum generally requires

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Although federal criminal procedure designates “documents and
objects” that are “subject to disclosure,”113 the rule grants no power to direct
the course of the investigation. Rather, it designates three categories of
disclosures, all sourced from the State. The first category requires the State
turn over documents it intends to use “in its case-in-chief at trial.”114 Any
disclosure will favor the State’s case. The second category requires
disclosure of any item that was “obtained from or belongs to the
defendant;”115 a tell-me-what-I-already-know right. The last category—that
the State must turn over items “material to preparing the defense”116—is
most accurately characterized as a disclosure. Some courts maintain the
Brady standard does not govern this provision,117 while other courts look to
Brady for guidance;118 the debate only underscores the cautious nature of
the statute’s language. Not debated is that the State determines what is
material to the defense and is prone to undervalue evidence helpful to the
defense.119 These three categories permitting limited disclosures from a
single source fall well short of rights extended to civil litigants.
Providing more robust disclosure rights for a criminal defendant
than either the federal or ABA standards, Florida is again an outlier. Florida
requires that, upon request, the prosecutor turn over all investigative

                                                                                                                                       
court intervention, such that production cannot be compelled directly from the third party. See,
e.g., FED. R. CRIM. P. 17(c)(1) (“The court may direct the witness to produce the designated items
in court before trial or before they are to be offered in evidence.”) (emphasis added). Additionally,
other requirements may limit what can be requested; for example, Virginia requires that the
requesting party include an affidavit “that the requested writings or objects are material to the
proceedings.” VA. SUP. CT. R. 3A:12(b).
112
The Federal Rules of Civil Procedure as well as each state in the sampling allow for
civil litigants to obtain documents and things from both parties and nonparties. ALA. R. CIV. P.
RULES 34(a), 45(a)(3); CAL. CODE CIV. P. §§ 2031.020(b), 2020.410, 2025.280(b); FED. R. CIV. P.
34, 45(c); FLA. R. CIV. P. 1.350(b), 1.351(a), 1.410(c); ILL. S.C.R. 214; N.Y. C.P.L.R. 3120,
3111; OHIO CIV. R. 34(A)-(C), 45(A)(1)(b)(iii)-(vi); PA. R.C.P. NO. 4009.1, 4009.12(a)(1)-(2),
4009.21(a), 4009.23(a); TEX. R. CIV. P. 196.1(a), 196.2(a), 205.1(c)-(d), 205.3(a); VA. SUP. CT. R.
4:9(a)-(b), 4:9A(a)-(b); WIS. STAT. § 804.09(1)-(3); 805.07(2)(a).
113
FED. R. CRIM. P. 16(a)(1).
114
FED. R. CRIM. P. 16(a)(1)(E)(ii).
115
FED. R. CRIM. P. 16(a)(1)(E)(iii).
116
FED. R. CRIM. P. 16(a)(1)(E)(i).
117
See supra notes 30-35, for a discussion of the Brady doctrine. The Brady right only
applies to admissible evidence; it does not provide for any right to investigate, but rather is
animated by the much narrower concept of due process. Brady v. Maryland, 373 U.S. 83, 87
(1963). Under Brady, the “materiality” standard is rigorous; a document is only material if it has
a reasonable probability of changing the outcome. Kyles v. Whitley, 514 U.S. 419, 434 (1995).
To be cognizable under Brady, the withheld item must affect the outcome of a dispute—a
concept foreign to the investigative phase.
118
ROBERT M. CARY, ET. AL., FEDERAL CRIMINAL DISCOVERY, 96 (2011) (“Courts
sometimes equate the Rule 16(a)(1)(E) materiality standard with the Brady rule, which also has a
materiality component. Other courts have disagreed, and rightly so.”).
119
Findley & Scott, supra note 29, at 351 (“Brady demands too much of prosecutors
when it simultaneously asks them to act as advocates charged with prosecuting a defendant and
as neutral observers responsible for assessing the value of evidence from the defendant's
perspective.”).

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120

reports.
Limitations still distinguish Florida from civil counterparts; for
example, excluded from production are notes of investigators. 121 The
potential significance of this disclosure is made clear in the United States
Supreme Court decision in Smith v. Cain.122 There, one witness, Larry
Boatner, implicated Defendant Smith in a New Orleans shooting. Boatner
testified he was at a friend’s house when gunmen entered the home,
demanded money and drugs, and began shooting. 123 At trial, Boatner
identified Smith as a shooter. After trial, the defense learned of a
detective’s notes that stated Boatner “could not … supply a description of
the perpetrators other then [sic] they were black males.”124 These notes
would not be discoverable under Florida’s document disclosure provision.
Without access to documents relevant to the dispute, a party is
precluded from testing key facts; without deposition power, the few
documents that are disclosed are not adequately examined. That criminal
defendants are also deprived of interrogatories heightens the cumulative
effect of this disparity.
C.

Investigative Tool No. 3: Interrogatories

Interrogatories—written questions to secure investigative leads—are
valuable at a dispute’s inception; one can require the other side to list facts
in support of the party’s allegations, along with names of individuals with
information and documents that provide the basis for those assertions.125
Information requested is not subject to the knowledge of a particular person;
rather, answers “represent the collective knowledge of the opponent.”126
Granted to civil litigants,127 interrogatories are not extended to criminal
litigants in jurisdictions influenced by federal and ABA standards. Florida,
again, distinguishes itself; the equivalent of a “form interrogatory” is
embedded in the statute, requiring the State to disclose “a list of the names
and addresses of all persons known to the prosecutor to have information
that may be relevant to any offense charged or any defense thereto, or to any
similar fact evidence to be presented at trial,”128 a designation that applies to
eyewitnesses, alibi witnesses, investigating officers, and witnesses the State

                                                        
120

FLA. R. CRIM. P. § 3.220(b)(1).
FLA. R. CRIM. P. § 3.220(b)(1)(B).
122
132 S. Ct. 627, 630 (2012).
123
Id. at 629-30.
124
Id. The State also failed to disclose Boatner’s statement that he “could not ID
anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” Id. at 630.
125
Edward Miner & Adrian Schoone, The Effective Use of W ritten Interrogatories, 60
MARQ. L. REV. 29, 30 (1976) (“Interrogatories are often preferable to depositions for identifying
such things as witnesses, documents, the dates and substance of transactions and conversations.”).
126
Id.
127
See, e.g., ALA. R. CIV. P. 33; CAL. CODE CIV. PROC. § 2030.030; FED. R. CIV. P. 33;
FLA. R. CIV. P. 1.340(a); ILL. S.C.R. 213; N.Y. C.P.L.R. 3130; OHIO CIV. R. 33; PA. R.C.P. NO.
4005(a); TEX. R. CIV. P. 197; VA. SUP. CT. R. 4:8(a); WIS. STAT. § 804.08.
128
FLA. R. CRIM. P. § 3.220(b)(1)(A).
121

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does not intend to call.
D.

129

 

In the Neighborhood— W hat it W ould Mean to Have
Investigatory Tools

How would these tools—interrogatories, document requests,
depositions—impact the ability of a criminal defendant to conduct an
investigation? Without knowing whether providing a criminal defendant
formal power to investigate will reduce false positives or increase false
negatives, are there other values—accuracy in the outcome, efficiencies to
be gained, conceptions of procedural justice, considerations of prosecutorial
integrity—that recommend such systemic change? A recent case involving
the shooting of Rodolfo Jimenez in Racine, Wisconsin provides an
anecdotal starting point to examine these questions.130 DeShawn Milton
was tried and convicted for shooting Jimenez to death. Milton’s trial took
two days. Defense counsel did not call any witnesses. The jury found
Milton guilty of first-degree homicide. At sentencing, Milton proclaimed
his innocence. Milton was sentenced to life in prison.
A well-resourced postconviction inquiry resulted in obtaining
information that, under typical rules of criminal procedure, would have
remained hidden from a defense attorney’s view. In contrast, every piece of
information that informed the postconviction inquiry, which resulted in the
conviction being vacated, would have been subject to disclosure using
investigatory tools available to civil litigants.
On January 15, 2006 at10 pm, twenty year-old Rodolfo Jimenez was
gunned down on the street. From an apartment window, an eyewitness
observed two males facing Jimenez. She heard multiple shots. The shooter
and his companion ran westbound before disappearing up an alley. Next to
the victim, police found a cigarette and hat. On Jimenez’s rear driveway,
police recovered a wristwatch belonging to Manny Diaz. Diaz asked for his
wristwatch back. He said it tended to fall off; police returned it. Testing of
the cigarette found near the shooter resulted in no matches to the DNA
database. Leaving the investigation dormant, detectives had made an
investigative choice: they would not attempt to inquire further into Diaz’s
potential involvement, despite a suspect alibi. According to Diaz, who lived
on the same street as Jimenez, at the time of the crime he was driving
around the neighborhood and had picked up some girl, her name forgotten.
Two years later, Marcus House, in custody on an unrelated matter,
told authorities that, five months earlier, he heard from an inmate that seven
individuals were in an alley when DeShawn Milton and Martine Perez shot
Jimenez. When detectives questioned Perez, he told police he heard Milton
and Matt Roth shot Jimenez. At this point, investigators were presented

                                                        
129

Id.
Inspired by an actual case, names of individuals involved have been changed, as
well as dates and other identifying details.
130

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with a new cast of characters and conflicting stories. For example, Marcus
House described a crime that involved seven people; eyewitness only saw
two males. House said the shooting was in an alley; the crime occurred on a
street.
This initial state of affairs reflects the potential messiness of an
investigation. By the time a prosecutor presents charges, however, the
confusion will have been washed out of the story. The initial complexities
and contradictions, memorialized in police reports, will typically remain
unknown to the defense; these reports regarding Diaz and House would not
be subject to disclosure, for example, under federal rules.
When detectives questioned Roth—the individual implicated by
Perez—Roth made a ten-page statement: Roth asked “a Mexican” for a
cigarette—Dame un cigarillo, por favor. Jimenez responded, “Fuck you, get
a job.” Roth heard a gunshot, saw Jimenez double over, and looked back to
see a gun in Milton’s outstretched hand. After signing the statement on
every page—a tactic to aid the prosecutor in trial—Roth walked out of the
station. The State filed charges against Milton. For the next seven months,
Milton sat in custody. During this time, under criminal procedure, Milton’s
attorney would receive very little information about the case and would
have no power to conduct a formal investigation. A civil litigator, in
contrast, would immediately serve interrogatories:131
1. State all facts that support the allegations in the Complaint,
providing a description of documents and contact information of
individuals who have information supporting these facts.
2. Provide contact information of any individuals who implicated
someone other than defendant in the shooting, along with a
description of all documents that relate to any of these individuals.
3. Provide a description of all items of physical evidence collected in
the investigation of the shooting, along with a description of all
relevant documents, including forensic documents.
4. Provide contact information of all individuals interviewed by law
enforcement in the investigation of the shooting, and describe all
relevant documents.

The civil litigator would also file an accompanying request calling for the
production of documents described in these interrogatories.
Due to a postconviction effort that expended massive resources in
conducting an informal investigation, the resulting record reveals some facts
that would have been disclosed in a response to these interrogatories,
including Roth’s statement. A civil litigator would then propound a second
round of interrogatories, calling for all facts that corroborate the veracity of

                                                        
131

format.

This sample set of interrogatories is compressed, and does not follow the traditional

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Roth’s statement. After receiving foundational information from the State,
a civil litigator would propound document requests on the State and third
parties, and then issue subpoenas to depose individuals thought to be worthy
of the attorney’s time. A civil litigator would have received at least the
following information in response to these efforts:
1. Roth’s written statement implicating Milton in the shooting;
2. Police reports indicating detectives picked up Roth as a suspect for
Jimenez’s murder, that Roth first denied any knowledge of the
Jimenez shooting, and that detectives then suggested, falsely, that
Milton had implicated Roth in the shooting;
3. Evidence that Roth’s interrogation lasted over ten hours;
4. Police reports indicating that Roth had shot at and almost killed an
individual six weeks before the Jimenez shooting, one block away;

5. Police reports that Roth was found in possession of a handgun
before and after the Jimenez shooting.
None of these documents would arguably be subject to pretrial disclosure
under federal criminal procedure. In postconviction proceedings, the
prosecutor argued these records, with the exception of Roth’s statement,
were not material or even relevant; the court found otherwise.
In civil litigation, a litigator commonly uses a key document to
guide deposition choices. The Jimenez case had one such a document:
Roth’s statement.
A civil litigator would depose detectives who
interrogated Roth and who assisted in drafting Roth’s statement, any person
mentioned in Roth’s statement, and of course Roth. According to Roth’s
statement, on the day of the shooting—January 16, winter in Wisconsin—
Dante Randall cut Roth’s hair on the front porch. The appellate team
examined meteorological data; the wind chill was 23 degrees below freezing.
Had Roth received a haircut outside? The appellate team inspected the
house on Green Street that Roth had described. The porch was open.
Lacking subpoena power, it took the appellate team three months to
persuade Dante Randall to meet at Burger King. In a pretrial context, this
on-a-wing-and-a-prayer approach is problematic. Hoping to interview a
critical witness is not a “discovery plan” that assists in assessing a plea or in
testing potential trial theories. Randall was reticent to meet, a reluctance
likely more acute at a pretrial stage, given the prevailing fear in urban
communities that police will potentially implicate anyone with information.
And having thirty minutes to supplicate and attempt to elicit voluntary
disclosures is inferior to having a day, in a deposition, to compel answers.
Randall did share some information: he didn’t cut white people’s
hair and would not cut anyone’s hair on an open porch in winter. Randall
also remarked he wasn’t sure he lived on Green Street in January of 2006.
This was potentially significant: Roth alleged that, after Randall gave him a

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haircut, Roth walked to the rear garage and observed Milton with a
revolver—the same gun Roth saw later that night in Milton’s outstretched
hand, pointed at Jimenez. The State argued this fact showed Milton had the
means to shoot Jimenez. But if Randall hadn’t lived on Green Street, Roth
was mistaken or, worse, had engaged in treacherous fiction.
A civil attorney, at this juncture, would issue subpoenas to third
parties to compel the production of documents, including information from
landlords and utilities. Criminal defendants typically do not have this
pretrial power; but the winds of fortune again favored the appellate team,
which persuaded the owner of the Green Street house to go up to her attic
and look through shoeboxes. She found receipts: Randall had moved out in
September of 2005, four months before the shooting. The utility company
unexpectedly complied with a request for billing records in the absence of a
subpoena; Randall’s bill had been transferred to a house on Lakeside Drive
in September 2005. 132 Rental receipts from the Lakeside Drive owner
confirmed Randall’s September move. The Lakeside home did not have a
front porch or rear garage. Roth had been lying.
The surface was scratched. Despite expending significant resources,
key witnesses refused to cooperate, including Roth, the detectives who
interrogated Roth, and others mentioned by Roth. Carlos Caballero, for
example, was allegedly with Milton when Roth first saw Milton with the
murder weapon—would Caballero corroborate or undermine Roth’s
statement? A criminal defense attorney, having no power to investigate,
would have no way to verify, one way or another. A civil attorney would
have deposed each and every one of these witnesses.
The appellate team did find something else. Police reports that
would not have been disclosed under federal criminal procedure referenced
Antonio Hernandez a number of times; but police never questioned him. It
took three months to persuade a friend of Hernandez to arrange a meeting.
Part of Hernandez’s reluctance; he was a confidential informant for the
State. If he turned against the State, the State could deem him a liar and
reinstate drug charges against him; thus, Hernandez, by volunteering
information, faced the prospect of losing his union job and going to prison.
Hernandez sat staring down at the table. After a long period of silence, he
lifted his head and told the appellate team that Roth had, on the night of the
shooting, confessed to killing Jimenez.133

                                                        
132

Criminal defendants rarely have the power to serve a subpoena duces tecum (civil
litigants do). See supra notes 111-112 and accompanying text. 
133
The prosecutor’s position on the matter, incidentally, was that the witness was lying,
and therefore any information provided to the State by this confidential informant (CI) was
worthless. The prosecutor believed he was under a duty to cut this CI loose—meaning that the
CI would no longer be immunized from pending charges. An alternative viewpoint, never
considered by the State or any court: to deem Hernandez a liar and implicitly threaten prosecution
because his anticipated testimony happened to favor defendant’s case constitutes obstruction of
evidence in a homicide investigation, a felony.

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After a yearlong postconviction investigation, the appellate team
presented ten witnesses and fifty exhibits in an eight-day evidentiary
hearing. When confronted with new facts, Roth refused to answer questions,
claiming his Fifth Amendment right against self-incrimination. Moved by a
cohesive narrative that suggested Roth, not Milton, was the likely
perpetrator, the court granted Milton a new trial.
Had Milton had the power to compel documents and pretrial
testimony, information developed by the appellate team’s massive
investigation that spanned a year would have emerged before trial, not after
Milton’s conviction. Very few criminal defendants had the resources of
Milton’s appellate team. Greater resources help to mitigate the effect of the
discovery deprivations visited on a defendant; yet, more resources do not
compensate for the absence of the pretrial power to compel information.
The Jimenez postconviction investigation suggests (1) that the power to
compel pretrial attendance and testimony, along with documents that should
be subject to scrutiny, would be significantly more efficient than conducting
an informal investigation, (2) that the appellate team would have found
much more information with the aid of formal investigative powers, and (3)
the idea that the defense has nothing to offer as a party to the investigation
is of a mythical origin.
III.

RESPONDING TO THOSE IN FAVOR OF DARKNESS

The resistance to granting a criminal defendant the power to
investigate has deep roots; in an article published in 1960, Professor Robert
Fletcher wrote:
Historically, discovery was unavailable in either civil or
criminal cases, and despite the full development of
discovery in civil cases, denial in criminal cases has
persisted. Even as recently as 1927, Mr. Justice Cardozo,
then Chief Judge of the New York Court of Appeals, could
see only the faint beginnings of a doctrine which would
allow discovery in a criminal case. To achieve the degree
of liberality that recent cases show, the courts have had to
overcome the inertial force of a long and deeply imbedded
practice designed to keep the defendant in the dark as long
as possible.134

The arguments against providing criminal defendants continue to
have adherents; but, in light of increasing efforts to reform criminal
procedure, these arguments against change should be subject to renewed
scrutiny.

                                                        
134

294 (1960).

Robert L. Fletcher, Pretrial Discovery in State Criminal Cases, 12 STAN. L. REV. 293,

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A.

Trial is Not a Substitute for a Strong Pretrial Investigation

Some status quo proponents assert that pretrial investigation is
unnecessary because a trial provides an adequate forum for adversarial
testing.135 Most cases, however, settle; trial is a rare event.136 The quality
of facts informing trials strategy and witness selection depends on the
quality of the pretrial investigation. A trial is not an investigatory tool. By
the time a jury is impaneled, litigants are not exploring alternative theories
of liability. Pretrial motions have been decided. Litigants have determined
what they plan to establish. Any absence of a trial strategy at this juncture
would suggest deficient performance. 137 Structurally, rules of evidence
inhibit broad explorations of second-hand knowledge; hearsay, inadmissible
at trial, is essential to establishing investigative leads. 138 Open-ended
questions, standard fare in depositions, would undermine effective crossexamination at trial.
Live testimony does not cure the lack of deposition power. Trial is
a public spectacle. In the Jimenez case, postconviction counsel called a
detective to testify; he arrived in sneakers and a ratty tee. Detectives called
by the State arrived in tailored suits. Detectives often serve as apostles of
the prosecutor. A prosecutor can prepare a detective for testimony; this
opportunity is all but foreclosed to defense counsel. Trial is not the
optimum forum to test memory. Questioned by the defense, while jurors
listen to the tick of the clock, it is not uncommon for an officer to slowly
review a report before asking defense attorney to ask the question again.
These long stretches of silence break the flow of questioning and risk loss of
juror interest. A deposition allows for the hard work of refreshing witness
recollection. Any stalling by the witness prolongs the inquiry; there are no
fringe benefits. Trial is meant to be a public performance; its nature
prevents it from being an adequate platform for factual inquiry.

                                                        
135

Bennett L. Gershman, Preplea Disclosure of Impeachment Evidence, 65 VAND. L.
REV. EN BANC 141, 154 (2012) (expressing satisfaction with the current availability of discovery
to the criminal defendant in regard to the plea process).
136
Ninety-percent of criminal disputes resolve in a plea deal, whereas only ten percent
of criminal litigants advance to trial. See supra note 35 and accompanying text.
137
See, e.g., Silva v. W oodford, 279 F.3d 825, 846 (9th Cir. 2000) (“[A]n attorney's
performance is not immunized from Sixth Amendment challenges simply by attaching to it the
label of ‘trial strategy.’ Rather, ‘certain defense strategies may be so ill-chosen that they may
render counsel's overall representation constitutionally defective.’”) (citing United States v.
Tucker, 716 F.2d 576, 586 (9th Cir.1983)).
138
See, e.g., FED. R. EVID. 802-804. The hearsay rule alone precludes conducting an
adequate investigation—the question, “who told you that?” being central to any investigation. In
addition, the “other acts rule” precludes inquiring about what the witness has done, and his
knowledge of what others have done, in the past. See FED. R. EVID. 404.

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B.

Plea Bargaining is Not a Substitute for Investigation

Civil and criminal trials share similarities: the same rules of
evidence govern and they are similarly scripted in form and substance.139
Pretrial periods, however, follow a different script. If in civil litigation the
fact-finding process starts immediately and is aligned with the adversarial
testing process,140 scholars like Professor Bennett L. Gershman portray the
pre-plea period in criminal law as a period freed from adversarial testing:
The fairness of a trial contemplates a defendant in
possession of sufficient information to be able to challenge
the prosecution’s case. The fairness of a plea typically
hinges not on the amount of information a defendant
possesses, but rather on whether the plea is made
voluntarily with the assistance of competent counsel to
protect the defendant’s interests . . . whereas a fair trial
involves a forced settlement of a factual dispute in a fair
adversarial contest before a judge and jury, a fair plea
typically does not involve a factual dispute, is not
considered an adversarial proceeding, and involves the
functional equivalent of a stipulated set of facts.141

This reasoning implies that it is enough, at the plea stage, for a
defendant to be informed by his own conscience. This conclusion ignores
what defendant cannot: the facts alleged by the prosecutor, unopposed, will
result in punishment, regardless of a defendant’s innocence. Eighty percent
of criminal defendants are indigent;142 opposing the awesome power of
State, and facing the prospect of banishment, ill repute, and total isolation, a
criminal defendant will, regardless of guilt, consider mitigating the
imposition of a maximum penalty.143 And despite a focus on a defendant’s

                                                        
139

David A. Sklansky & Stephen C. Yeazell, Comparative Law W ithout Leaving
Home: W hat Civil Procedure Can Teach Criminal Procedure, and V ice V ersa, 94 GEO. L. J. 683,
684-85 (2006) (recognizing that while civil procedure and criminal procedure are quite different
they share enough common ground to allow for meaningful comparison).
140
See advisory committee’s notes to Fed. R. Civ. P. 26, for a discussion about the
purpose of amendments in 1993, which were to “accelerate the exchange of basic information
about the case and to eliminate the paper work involved in requesting such information.”
141
Gershman, supra note 135, at 144-45 (emphasis added).
142
Sklansky & Yeazell, supra note 139, at 690 (“[T]he vast majority of criminal
defendants are indigent – the figure is over 80% in state felony cases.”) (citing CAROLINE WOLF
HARLOW, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: DEFENSE
COUNSEL IN CRIMINAL CASES 1 (2000); STEVEN K. SMITH & CAROL J. DEFRANCES, U.S. DEP’T OF
JUSTICE, BUREAU OF JUSTICE STATISTICS SELECTED FINDINGS: INDIGENT DEFENSE 1, 4 (1996)).
143
Langer, supra note 6, 229 (stating that “scholars have argued that prosecutors have
the power to impose their decision in a case on the defendant by offering a sentence substantially

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conscience, Gershman’s view cannot avoid the significance of a defendant
having access to information during this phase:
As a former state prosecutor, I recall the issues surrounding
pre-plea disclosures in practice. The give and take of the
relatively informal bargaining process typically focused on
how much information about the case I was willing to share
with defense counsel and, of course, the amount of
punishment I would be willing to recommend to the
sentencing judge if the defendant accepted my offer.144

In this analysis, stipulated facts are those a prosecutor deems
pertinent to negotiation.145 This begs the question: if knowing facts is not
incompatible with an act of conscience, what is the argument against
knowing more facts? And given the constitutional requirement that there be
a factual basis for any plea, adversarial testing would presumably improve
that basis.
The plea colloquy, which ensures a criminal defendant accepts guilt
knowingly and voluntarily and that the evidence against him can be
articulated, is not a feature of civil litigation. This constitutional check on
prosecutorial authority suggests that criminal courts, as opposed to civil
courts, scrutinize the record before accepting the plea, theoretically
mitigating concerns about defendant’s exclusion from any pretrial
investigation. After all, in civil disputes settlement is reached privately,
liability is rarely admitted, and the case is dismissed in the absence of
judicial oversight.146 This view suggests that civil disputes are subject to
less judicial oversight, whereas criminal disputes have built-in
safeguards.147
But in operation, judicial scrutiny of the factual record at summary
judgment,148 and the civil court’s determination of what claims survive, is
much more searching than a criminal court’s review of the factual record in
a plea hearing. In criminal courts the representations of the prosecutor, or
even a reference to the charging document, untested by any pretrial
adversarial process, satisfy a court’s inquiry into the factual integrity of the
record. In this respect, the differences between the two systems only serve

                                                                                                                                       
lower than the one expected at trial. They argue that this sentence differential leaves defendants
with no rational choice but to plead guilty, and this lack of choice makes guilty pleas
involuntary.”).
144
Gershman, supra note 135, at 144-45 (emphasis added).
145
Stipulated facts in civil litigation would typically occur after adversarial testing
leads both parties to the same interpretation of certain facts and circumstances.
146
Matthew B. Tenney, When Does a Party Prevail?: A Proposed “Third-Circuit-Plus”
Test for Judicial Imprimatur, 2005 B.Y.U.L. REV. 429, 437.
147
Brady v. United States, 397 U.S. 742, 748 (1970).
148
See, e.g., FED. R. CIV. P. 56(a); see also Carrie Leonetti, W hen the Emperor Has No
Clothes: A Proposal for Defensive Summary Judgment in Criminal Cases, 84 S. CAL. L. REV. 661,
668-69 (2011).

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to highlight the significance of the pretrial factual disparity, compounded by
any lack of meaningful judicial review in criminal prosecutions.
Unlike criminal defendants, civil litigants and their lawyers conduct
depositions and collect information to evaluate the strength or weaknesses
of the opposing party’s claims, and whether facts thought to support or
undermine liability are susceptible to an alternative explanation. For
unarticulated reasons, some view criminal liability as an on-off switch—a
person is either guilty or innocent. Yet, sentencing takes into consideration
a whole host of factors to determine the level of punishment. In a felonymurder case, defendant is liable for murder, but how do we assess liability
of the person who lent the killer his car? Civil litigation folds “punishment”
into the question of “liability”—because, in operation, they are inseparable.
Liability in civil law is not viewed as an on-off switch, and factors
that motivate settlement will differ from case to case. Civil pretrial
discovery is aimed at assessing the level of responsibility, and assessing
how much defendant should pay. This is no different than the criminal law
pretrial process. They are more similar than they are different—the critical
difference being that criminal defendants are precluded from knowing
critical facts, have no way to formally test the State’s untested facts, and
must face the prospect of punishment in a state of total darkness.
C.

Constitutional Rights Should Not Be Used A gainst A
Defendant

If depositions were permitted in criminal investigations, the State
would arguably be precluded from deposing defendants. Some argue it
would be unfair to give parties investigatory tools when the State would be
precluded from their use.149 This argument overstates the limitation on the
State, and fails to contend with the fact that civil litigants daily deal with
this dynamic. Civil litigants are foreclosed from making inquiries into
privileged information, however probative—for example, in a shareholder
lawsuit, a plaintiff can expect to be prevented from inquiring into what was
discussed at an executive board meeting held in the presence of the board’s
attorney. These privileges do not inhibit, ultimately, broad and intrusive
inquiry into the opposing party’s theory of the case. Likewise, the fact that
the State may be foreclosed from deposing a defendant would not foreclose
the State from compelling responses from all of a defendant’s friends,
family, alibi witnesses, former employers, landlords, and anyone with
relevant information.150

                                                        
149

See United States v. Garsson, 291 Fed. 646, 649 (S.D.N.Y. 1923), for Judge
Learned Hand’s view on expanding criminal discovery.
150
Florida’s approach to discovery depositions in criminal proceedings provide an
example of how discovery depositions can be used in the criminal justice system without running
afoul of the confrontation clause. FLA. R. CRIM. P. 3.220(h)(A)-(D) (allowing both the defendant
and the prosecution to depose certain categories of witnesses).

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And although the criminal defendant has unique constitutional
protections that likely preclude the taking of defendant’s deposition, the
State would, regardless of discovery reform, retain certain structural
advantages over defendant—having at its disposal a police force armed with
inherent authority to arrest, interrogate, search, and seize.151 In contrast,
constitutional protections afforded to defendants do little to check the
State’s investigative power; for example, individuals tend to cooperate in
custodial interrogations, despite the constitutional right to remain silent.152
From the defendant’s perspective, these constitutional rights—like the right
to remain silent—provide no affirmative right to engage in fact-finding.
D.

Reassessing the Parade of Horribles that W ill Occur if W e
Grant Investigatory Rights to Criminal Litigants

One criminal law casebook, addressing the question of whether
criminal procedure should permit depositions, provides a litany of concerns
that provide insight into the opposition to expanding investigatory powers to
criminal defendants:
Why have so few states been willing to adopt the discovery
deposition, a mainstay of civil discovery? Most of the
reasons offered related to administrative difficulties. It is
noted, for example, that civil discovery depositions are used
in conjunction with interrogatories, which allow the parties
to discover from each other the names of all persons thought
to have relevant information. In the criminal discovery
process, many jurisdictions do not even require reciprocal
pretrial disclosure of witness lists . . . . 153

This rationale suggests that one deprivation (no interrogatories in criminal
law) should necessitate another (without interrogatories, how can one know
who to depose?). The depth of the disparity should only reinforce the need
for comprehensive remedies.
The casebook continues, “that depositions are very costly, and with
the state footing the bill for indigent defendants, there is no financial
sacrifice that would provide a restraint against appointed counsel
conducting unnecessary depositions.” 154 The assertion does not explain
how conducting a formal investigation will relieve public defenders of a
relentless caseload.155 In Wisconsin, for example, a public defender must

                                                        
151

See supra notes 98-99 and accompanying text.
See supra note 106 and accompanying text.
153
KAMISAR, ET AL., supra note 36, at 1206.
154
Id.
155
Peter A. Joy, Ensuring the Ethical Representation of Clients in the Face of
Excessive Caseloads, 75 MO. L. REV. 771, 777 (2010) (“Most commentators and bar leaders
agree that the major factors contributing to poor quality of defense services are excessive
152

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meet a quota of 200 points—receiving a half-point for a misdemeanor, and
upwards of twenty points for a homicide.156 An entry-level public defender,
to meet her minimum, must dispose of 400 cases in one year. Those
litigating on the felony calendar and predominantly taking Class A felony
cases “reduces” the load to two or three homicide cases a month. That such
taxed attorneys will have time to abuse the deposition power is belied by
caseload realities.
These concerns over discovery abuse are reminiscent of arguments to
undermine the reform movement that transformed civil procedure.157 To the
extent that instances of discovery abuse surface, judicial intervention
provides a moderating role and subsequent reform efforts have sought to
remedy instances of dilatory practice.158 Operationally, the complexity of a
dispute tends to govern the use of discovery. Even where litigants have an
arsenal of discovery tools at their disposal, less complicated disputes—the
majority of civil cases, in fact—are resolved in the absence of discovery.159
In Florida, the legislature has considered this concern, providing that, “No
deposition shall be taken in a case in which the defendant is charged only
with a misdemeanor … unless good cause can be shown to the trial
court.” 160 Controlling costs, in New Mexico a party may subpoena a
witness, record the interview, and direct an assistant to prepare a
transcript—to which the opposing party typically stipulates.161
The casebook continues:
The traditional civil deposition procedure, which allows the
party to be in attendance, is seen as providing further
administrative difficulties—forcing the victim/witness to be
confronted (without the security provided by the courtroom
setting) by a person he or she may fear, requiring, for
defendant’s attendance, the temporary release of the
defendant who is being held in custody . . .162

                                                                                                                                       
caseloads, lack of funds for expert witnesses and investigators, and extremely low pay rates for
court-assigned lawyers and contract defense services.”).
156
Interview with Michele LaVigne, Clinical Professor of Law, University of
Wisconsin Law School, in Madison, Wis. (Jan. 23, 2012).
157
Subrin, supra note 21, at 692 (writing that one Senator worried: “You bring a suit
against a man, without any ground whatever--the president of some important company, the
president of a utilities company or a bank or something. You take his deposition, have the
reporters present, and grill him in the most unfair way, intimating that he is a burglar or murderer,
or this, that, and the other. He has no redress, and the next morning the papers have a whole lot of
front-page stuff. The case never goes any further. That is all that was intended.”). 
158
FED. R. CRIM. P. advisory committee’s notes to1993 amendment.
159
David Trubeck et al., The Cost of Ordinary Litigation, 31 UCLA L. REV. 72, 89-90
(1983) (“Our data [analyzing civil litigation trends] suggests that relatively little discovery occurs
in the ordinary lawsuit. We found no evidence of discovery in over half our cases. Rarely did
the records reveal more than five separate discovery events.”).
160
FLA. R. CRIM. P. 3.220(h)(1)(D) (2012).
161
Interview with Katherine Judson, Innocence Project Litigation Fellow, in Madison,
Wis. (Oct. 23, 2012).
162
KAMISAR, ET AL., supra note 36, at 1206.

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There is no requirement that a defendant show up to a civil
deposition163—and it is a rare occurrence. A criminal defendant’s presence
at a deposition is not constitutionally compelled.164 Even the casebook
acknowledges that “deposition jurisdictions” provide that “only defense
counsel need be present at the deposition.” 165 Missouri, for example,
provides a default rule that a criminal defendant, “shall not be physically
present at a discovery deposition except by agreement of the parties or upon
court order for good cause shown.”166 Florida provides protections for
“sensitive witnesses.”167 A related argument is that a victim of domestic
violence or sexual assault might be deterred from complying with a
deposition to be subjected to hours of painful testimony. Precautions would
mitigate these concerns: ensuring that the defendant is not present, limiting
the time to depose the victim, and restricting the resulting testimony’s
distribution to only attorneys. These types of precautionary measures would
also be appropriate where witness retaliation is a concern.
E.

The Criminal Law A rena Should Not Remain Separate and
Unequal

If the hand that rocks the cradle forms our world-view, casebooks
provide insight into the law school origins that establish initial expectations
of what information is sufficient to resolve a civil versus a criminal dispute.
Civil procedure casebooks provide students with a comprehensive treatment
of formal discovery rights available to litigants—one casebook dedicates
sixty pages to the subject. 168 One casebook opined that for criminal
defendants “discovery provisions uniformly are broader than prosecution
discovery provisions,”169 suggesting to students that a criminal defendant is
entitled to more information than the prosecutor. There is, with few

                                                        
163

See, e.g., FED. R. CIV. P. 30.
The right to confront witnesses against the defendant only ripens at trial. See Sarah
A. Stauffer & Sean D. Corey, Sixth A mendment at Trial, 87 GEO. L.J. 1641, 1647 (1999). In
Florida, a defendant is not allowed to be present at the taking of a discovery deposition without
court approval. FLA. R. CIV. P. 3.220(h)(7). This led the Florida Supreme Court to clarify the use
of testimony from a discovery deposition at trial in terms of the requirements of the confrontation
clause. The court found that, generally speaking, a discovery deposition does not provide for
meaningful cross-examination of the deponent especially since a discovery deposition is not a
device designed to gather testimony for later use at trial. State v. Lopez, 974 So.2d 340, 347 (Fla.
2008). 
165
KAMISAR, ET AL., supra note 36, at 1206.
166
MO. SUP. CT. R. 25.12(c).
167
FLA. R. CRIM. P. 3.220(h)(4) (2012) (providing, “[d]epositions of children under the
age of 16 shall be videotaped unless otherwise ordered by the court. The court may order the
videotaping of a deposition or the taking of a deposition of a witness with fragile emotional
strength to be in the presence of the trial judge or a special magistrate.”).
168
ALLAN IDES & CHRISTOPHER N. MAY, CIVIL PROCEDURE CASES AND PROBLEMS 608668 (3d ed 2009).
169
KAMISAR, ET AL., supra note 36, at 1201.
164

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170

 

exceptions, a de facto omertà on a comparative approach to discovery
rights afforded to civil and criminal litigants in these casebooks.
This insularity between disciplines continues into practice—there is
little cross-pollination between criminal and civil practitioners.171 Although
civil litigators rarely step into the criminal arena, when they do, they “tend
to be stunned and often outraged by their inability to depose government
witnesses or even to file interrogatories or requests for admissions.”172 A
colleague teaching Criminal Procedure recently broke with the tradition of
segregation; knowing students had a semester of Civil Procedure, he
introduced a hypothetical criminal complaint, and asked students how they
would investigate the case. As hands went up, depositions of witnesses
were scheduled, interrogatories drafted, requests for documents propounded.
Then my colleague let fall the hammer: young Padawans,173 you have none
of these discovery tools available to you and your investigation has just
been rendered virtually impossible. When confronted by the inequity from
an advocate’s point of view, a sense of injustice emerged.174
V.

CONCLUSION

Rules that govern the exchange of information ultimately reflect the
quality of information society agrees to afford litigants. A limited grant of
discovery power would suggest an unwillingness to disrupt daily life to
resolve a dispute. A small claims court, for example, does not permit
litigants to depose witnesses to determine the exact value of damage done to
a personal printer.175 In contrast, invasive discovery tools are permitted in
disputes deemed significant; in civil disputes, litigants are afforded
investigative tools that disrupt lives of others. A criminal defendant, in this
respect, has more in common with a small claims litigant.
Precluding a criminal litigant from a formal investigation means the
quality of facts informing resolutions is, relative to civil law outcomes,
inferior. Entitled to only discrete information, negotiations in criminal
disputes are based on allegations in the complaint, evidence favorable to the
State, and the raw power to threaten sobering penalties in exchange for
reduced punishment. One cannot imagine a civil dispute in which a
defendant would only be entitled to plaintiff’s complaint and documents

                                                        
170

JOSHUA DRESSLER & GEORGE THOMAS, CRIMINAL PROCEDURE: PRINCIPLES, POLICIES
880 (4th ed. 2010).
171
Sklansky & Yeazell, supra note 139, at 684.
172
Id. at 714-15.
173
A Jedi in training, who is typically, unlike a law student, assigned to only one Jedi

AND PERSPECTIVES,

master.

174

Interview with Byron Lichstein, Associate Clinical Professor, University of
Wisconsin Law School , Interim Director, Frank J. Remington Center, Director, Wisconsin
Innocence Project, in Madison, (Nov. 15, 2012).
175
Small claims courts are characterized by the “lack of opportunity to conduct
discovery.” Bruce Zucker & Monica Her, The People's Court Examined: A Legal and Empirical
A nalysis of the Small Claims Court System, 37 U.S.F. L. REV. 315, 347 (2003).

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selected by plaintiffs. Yet, most criminal defendants are entitled to just
that, 176 facilitating complaint-based outcomes that credit prosecutorial
hunches.
These pretrial deficiencies—affecting ninety percent of
defendants177—are not cured by trial. The information that informs trial,
relative to civil trials, is, too, inferior: the overwhelming source of
information originates from the State’s file, sources of potentially
exculpatory evidence remain unexplored, and witnesses who have not been
deposed are freer to prevaricate. The Supreme Court acknowledged in
Kyles v. W hitley that it is a legitimate defense to argue to the jury that the
State’s investigation was flawed. But a defendant cannot discern the
existence of this defense without the ability to conduct an independent
investigation to show what law enforcement missed.
We have, as a society, determined a criminal defendant is not
entitled to investigate his case, and that his right to be informed is in every
respect inferior to those rights afforded to all other parties.178 In 1974,
when changes were made to federal criminal procedure to ensure that
pretrial disclosure was mandatory upon request, it was done because:
broad discovery contributes to the fair and efficient
administration of criminal justice by providing the
defendant with enough information to make an informed
decision as to plea; by minimizing the undesirable effect of
surprise at the trial; and by otherwise contributing to an
accurate determination of the issue of guilt or innocence.179

This is the Advisory Board’s “Mission Accomplished” moment—the finish
line is a long way off.
As to the Jimenez case, critical questions will remain unanswered.
Was Manny Diaz the shooter? Why did detectives return Diaz’s wristwatch
that was found in the victim’s driveway, and why didn’t they continue to
investigate the sufficiency of Diaz’s shaky alibi? Jimenez was a drug dealer,
had Diaz, a neighbor, shot Jimenez to take over drug territory? Was the
State wrong to believe Roth was telling the truth? Was the appellate team
wrong to point the finger at Roth? Perhaps Roth’s statement was a fictional
act of desperation to avoid liability? Unfortunately, Diaz and his associates,
along with the detectives, refused to be interviewed by the defense team.
With the State having already decided on a theory of the case, these
questions are impossible to answer in the absence of the power to compel

                                                        
176

See supra Part I.C.
See supra note 35 and accompanying text.
178
Susan R. Klein, Enhancing the Judicial Role in Criminal Plea and Sentence
Bargaining, 84 TEX. L. REV. 2023, 2044-45 (2006) (describing the “gulf between criminal and
civil discovery”).
179
FED. R. CRIM. P. 16 advisory committee’s note to 1974 Amendment.
177

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pretrial information. If and when the law grants a criminal defendant the
power to depose, propound inventories, and request documents, it will be
too late for those like Milton who claim to be innocent, know nothing about
the crime, and are thrust into darkness as the State decides their fate.
It is time for a criminal defendant’s role in an investigation to be
reevaluated. Certainly, greater access to the prosecutorial file and more
resources mitigate deprivations. But it is unjust to structurally preclude a
criminal defendant from investigating the case against him. A limited view
into the State’s file is far from sufficient. Compared to the major disputes
resolved in civil litigation that are informed by multiple sources and careful
examination of witnesses and documents, the criminal system remains
shielded from the light of discovery.

 

 

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